UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Z.B., a minor, by and through his mother, Sylvia Sanchez, Plaintiff Civil Action No. 18-87 (CKK) v. THE DISTRICT OF COLUMBIA, et al., Defendants

MEMORANDUM OPINION (February 16, 2018)

This case is about a disagreement over which school a child with autism should attend.

That child, Z.B., is currently attending the nonpublic Kingsbury Day School, but District of

Columbia Public Schools (“DCPS”) has determined that the proper location of service to

implement Z.B.’s Individualized Education Program (“IEP”) is another nonpublic school,

Kennedy Krieger. Plaintiff has filed this lawsuit seeking an order that Z.B. remain at Kingsbury

Day School at public expense. After filing suit, Plaintiff filed the currently pending [9] Motion

for Preliminary Injunction to Compel Stay-Put under the Individuals with Disabilities Education

Act (“IDEA”). In summary form, Plaintiff’s motion seeks to take advantage of a provision of the

IDEA which allows a child with disabilities, under certain circumstances, to remain in his or her

current educational placement while the appropriateness of a proposed change is litigated.

Having carefully reviewed the administrative record, the pleadings, 1 and the relevant

authorities, the Court determines that Plaintiff is not entitled to a stay-put injunction because

1 The Court’s consideration has focused on the following documents: • Pl.’s Mot. for Preliminary Injunction to Compel Stay-Put under the Individuals with Disabilities Education Act, ECF No. 9 (“Pl.’s Mot.”); • Def.’s Opp’n to Pl.’s Mot. for Preliminary Injunction to Compel Stay-Put under the Individuals with Disabilities Education Act, ECF No. 13 (“Defs.’ Opp’n”); • Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. for Preliminary Injunction to Compel

1 Plaintiff is not challenging a fundamental change to Z.B.’s current educational placement.

Plaintiff’s Motion for Preliminary Injunction to Compel Stay-Put is therefore DENIED. By

separate Order, the Court will instruct the parties to meet and confer and propose a schedule for

briefing dispositive motions in this matter.

I. BACKGROUND

A. Statutory Background

The IDEA was enacted to “ensure 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.”

(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 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,

, 1560 n.1

(D.C. Cir. 1989) (quoting Sch. Comm. of the Town of Burlington v. Dept. of Educ.,

(1985)). As such, it represents the “modus operandi” of the IDEA.

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 and advance from grade to grade.” Bd. of Educ. of

Hendrick Hudson Cent. Sch. Dist. v. Rowley,

(1982). Once the IEP is

Stay-Put under the Individuals with Disabilities Education Act, ECF No. 15 (“Pl.’s Reply”). The Court has also reviewed the administrative record submitted by Defendants. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 developed, the school system must provide an appropriate educational placement that comports

with the IEP. See Alston v. District of Columbia,

(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,

(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.,

(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.

§ 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). A party seeking a stay-put injunction

“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.” Lunceford v. D.C. Bd. of Educ.,

, 1582 (D.C. Cir. 1984).

B. Factual Background

Plaintiff Z.B. has been identified as a High Function Student on the Autism Spectrum.

See Am. Compl., ECF No. 3, ¶ 5. Z.B. is thirteen years old and currently enrolled in the 8th

grade at Kingsbury Day School, a nonpublic school in Washington D.C. Id. Z.B.’s October 12,

3 2016 IEP notes that, among other things, Z.B. requires a small class size with a low student-to-

teacher ratio, individualized instruction, and counseling for behavioral and social issues. Id. ¶

29. That IEP currently provides for Z.B. to have 26 hours per week of “specialized instruction”

outside the general education setting, 480 minutes per month of occupational therapy services

outside the general education setting, 360 minutes per month of physical therapy services outside

the general education setting, 240 minutes per month of speech-language pathology services

outside the general education setting, and 360 minutes per month of behavioral support services

outside the general education setting, in a normal school year. Id. ¶ 28.

On April 14, 2017, DCPS sent Plaintiff a document entitled “Prior Written Notice – Intent

to Discuss Change in Placement,” which proposed meeting to discuss moving Z.B. from

Kingsbury Day School to a different placement for the 2017-18 school year. Id. ¶ 31. Between

April and June 2017, Defendant allegedly attempted to persuade Plaintiff Sanchez to allow Z.B.

to visit other nonpublic schools that Z.B. might attend, but Plaintiff did not agree with Z.B.

changing schools because she contended that the alternatives were not able to implement Z.B.’s

IEP, and because of the distance between those schools and Plaintiff’s home. Id. ¶ 34.

On July 11, 2017, DCPS submitted a referral for Z.B. to the nonpublic school Kennedy

Krieger. Id. ¶ 36. On August 7, 2017, Z.B. was accepted into Kennedy Krieger with an 11-

month program, including: 30 hours per week of classroom instruction during the school year, 22

hours per week of classroom instruction during the summer, 240 minutes per month of direct

speech and language therapy, 480 minutes per month of direct occupational therapy, 360 minutes

per month of direct behavioral support services, and 360 minutes per month of direct physical

therapy services, and daily transportation. Id. ¶ 37.

4 On August 11, 2017, Plaintiff filed a due process complaint with the District of Columbia

Office of the State Superintendent of Education to challenge DCPS’s decision that Kennedy

Krieger is now the proper location of services for Z.B.’s IEP. Id. ¶ 6. The Hearing Officer in

that proceeding ultimately issued a determination that Plaintiff had not carried her burden. Id. ¶

11. In pertinent part, the Hearing Officer concluded that Kennedy Krieger could implement

Z.B.’s IEP, that the differences between Kingsbury Day School and Kennedy Krieger (i.e., that

Kennedy Krieger has a shorter bell schedule but provides services over a longer period)

represented only a “minor discrepancy in services,” and that Z.B.’s move to Kennedy Krieger

would therefore be “a change in service locations rather than a change in placement.” AR15-16.

Plaintiff now brings this lawsuit under the IDEA, the Rehabilitation Act of 1973, and the

District of Columbia Human Rights Act, with the aim of keeping Z.B. at Kingsbury Day

School. 2 Am. Compl. ¶ 1. On February 1, 2018, Plaintiff filed the pending Motion for

Preliminary Injunction, which seeks a stay-put injunction under the IDEA. See Pl.’s Mot. The

Court held a teleconference with the parties the next day to establish an agreed-upon briefing

schedule. The motion is now fully briefed and ripe for resolution.

II. DISCUSSION

Without making any ruling on the ultimate merits of Plaintiff’s claims in this case, the

Court finds that Plaintiff is not entitled to a preliminary injunction under the “stay-put” provision

of the IDEA. “Because 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. D.C.,

Plaintiff’s claims under the Rehabilitation Act of 1973 and the District of Columbia Human Rights Act are not relevant to the currently-pending motion. Defendants have indicated that they intend to move to dismiss those claims. See Defs.’ Opp’n at 17 n.7. The parties shall meet and confer before any such motion is filed.

5 Supp. 2d 227, 232 (D.D.C. 2013); see also G.B. v. D.C.,

(D.D.C. 2015)

(same). 3 Instead, the Court must simply determine whether the proposed transfer to Kennedy

Krieger school would represent a “fundamental change” to Z.B.’s “then-current educational

placement” at the time Z.B.’s due process complaint was filed. See G.B.,

.

Plaintiff argues that the proposed transfer of Z.B. to Kennedy Krieger school triggers the

stay-put provision because Kennedy Krieger has a slightly shorter bell schedule than Kingsbury

Day School, Kennedy Krieger’s school year is one month longer than Kingsbury Day School’s,

Kennedy Krieger is further away from Z.B.’s home than Kingsbury Day School, and because

Z.B. responds negatively to changes in his routine. See Pl.’s Mot. at 14-15.

Without in any way minimizing Plaintiff’s concerns about changes to Z.B.’s education,

the Court is not persuaded that these differences between the schools are significant enough to

justify the injunction Plaintiff seeks. As an initial matter, it is important to note that Z.B.’s

placement at Kingsbury Day School alone is not Z.B.’s “then-current educational placement” for

the purpose of the Court’s stay-put analysis. See D.K., 962 F. Supp. 2d at 233 (“The physical

school location alone does not constitute an ‘educational placement.’”); Johnson v. D.C.,

(D.D.C. 2012) (“The fundamental flaw in Plaintiffs’ argument is the

underlying assumption that M.J.’s ‘educational placement’ is the physical school he attends.”).

Although the IDEA does not define “then-current educational placement,” “courts have

explained that a child’s educational placement ‘falls somewhere between the physical school

attended by a child and the abstract goals of a child’s IEP.’” Johnson,

-77

3 Accordingly, the Court has not focused on the arguments about the traditional four-part test in Defendants’ opposition to Plaintiff’s motion. See Defs.’ Opp’n at 16-18. Both parties agree that that test does not apply. See Defs.’ Opp’n at 17; Pl.’s Reply at 4.

6 (quoting Bd. of Educ. of Cmty. High Sch. Dist. No. 218, Cook Cnty., Ill. v. Ill. State Bd. of

Educ.,

(7th Cir. 1996)).

Accordingly, the Court’s focus is not on the particular school location DCPS has

proposed for Z.B., but instead on whether the educational services Z.B. would receive at that

school are basically the same as those envisioned in his IEP and that he is currently receiving.

As the D.C. Circuit has held, Plaintiff “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.” Lunceford, 745 F.2d at 1582.

Despite the complaints Plaintiff has about Kennedy Krieger’s location and schedule, the

record suggests that the educational services Z.B. would receive at that school are not

significantly different than the education Z.B. currently receives at Kingsbury Day School. Both

are nonpublic schools at which Z.B. would receive speech and language therapy, occupational

therapy, behavioral support services and physical therapy services outside of the general

education setting. Compare AR287 with AR304. The record before the Court contains

testimony from Kennedy Krieger officials and the determination of the Hearing Officer that

Kennedy Krieger is able to implement Z.B.’s current IEP. See AR12 (finding that Kennedy

Krieger “can provide the services listed on [Z.B.’s] IEP”); AR16 (same); AR901 (testimony

from Kennedy Krieger official that the school can implement Z.B.’s IEP). 4 Under these

circumstances, the Court is not convinced that the proposed change of schools constitutes a

change in educational placement.

4 Without making any final ruling on the issue, it appears that, if anything, it is Kingsbury Day School that may have been having difficulty implementing Z.B.’s IEP recently. See AR16 (citing “the reasonable concerns DCPS continued to have about [Kingsbury Day School’s] appropriateness to meet [Z.B.’s] needs”); id. (noting that an independent education consultant determined that Kingsbury Day School “was not appropriate for” Z.B.).

7 Plaintiff is correct that the educational services that Z.B. is intended to receive at

Kingsbury Day School (which are reflected on his IEP) are not exactly the same as those Z.B.

would receive at Kennedy Krieger. Primarily, Plaintiff’s complaint about Kennedy Krieger is

that it has a one-month longer school year (and therefore a shorter summer vacation) and a

slightly shorter bell schedule than Kingsbury Day School. These differences between the

schools are not fundamental enough to allow Plaintiff to invoke the “stay-put” provision. The

schools simply take a slightly different approach to scheduling: While it is true that Kennedy

Krieger’s bell schedule (30 hours per week) is two hours shorter than Kingsbury Day School’s

(32 hours per week), this difference is due to the fact that Kennedy Krieger’s school year (11

months) is longer than Kingsbury Day School’s school year (10 months). AR12-13, 15.

Kennedy Krieger apparently believes that its students benefit from this schedule adjustment

because they “need a great deal of support and maintaining their structure is important for them.”

Id. The Hearing Officer determined, and the Court preliminarily agrees, that the fact that the

“schools structure their weeks differently, resulting in a different bell schedule,” represents only

a “minor discrepancy in services.” AR15.

Relatedly, Plaintiff argues that a stay-put injunction is warranted here because at

Kennedy Krieger Z.B. would receive slightly fewer weekly hours of “specialized instruction”

during the school year than the amount listed on his IEP. This change is merely derivative of the

differences in the school’s bell schedules that the Court has already discussed above, and

determined does not constitute a fundamental change to Z.B.’s educational placement.

“Specialized instruction” in this context apparently refers to the instruction Z.B. receives at all

times during the school day except when Z.B. is receiving particular services required by his IEP

(i.e., occupational therapy, physical therapy, speech-language pathology and behavioral support

8 services). AR1101-03. The number of “specialized instruction” hours on Z.B.’s IEP was

derived by simply subtracting the time set for those specific types of services Z.B. was

determined to need from the total bell schedule of Z.B.’s school (at that point, Kingsbury Day

School). Id. The testimony in the record before the Court is that the difference in the bell

schedules, and the resulting difference in “specialized instruction” hours, does not mean that

Kennedy Krieger cannot fulfill Z.B.’s IEP. Id.; see also AR12 (finding that Kennedy Krieger

“can provide the services listed on [Z.B.’s] IEP”); AR16 (same); AR901 (testimony from

Kennedy Krieger official that the school can implement Z.B.’s IEP).

Finally, Plaintiff’s concerns regarding the difficulty Z.B. might have transitioning

between schools, and the extra distance Z.B. would have to travel to reach Kennedy Krieger—

while by no means inconsequential—are not sufficient to demonstrate a “fundamental” change in

Z.B.’s educational program. 5 As Plaintiff Sanchez concedes, she herself has sought to change

Z.B.’s location of service from Kingsbury Day School in the past. See Am. Compl. ¶ 14. And

the extra commute distance that would be required for Z.B. to attend Kennedy Krieger

(approximately 10 miles), while not negligible, is also not so substantial that it would have a

fundamental impact on Z.B.’s educational program or experience. See DeLeon v. Susquehanna

Cmty. Sch. Dist.,

, 154 (3d Cir. 1984) (holding that “[m]inor changes in the daily

transportation routine . . . will not generally have such an impact on the child’s learning

experience” to justify a stay-put injunction).

5 Plaintiff indicates that by regulation the IDEA requires that a child’s placement be as close as possible to the child’s home. See Pl.’s Mot. at 14; Pl.’s Reply at 6. The Court views this argument as relating more to the merits of Plaintiff’s complaint about the proposed change, not to whether a stay-put injunction is warranted because a fundamental change to Z.B.’s current educational placement has been proposed.

9 Because it appears that both Kingsbury Day School and Kennedy Krieger can implement

Z.B.’s IEP and provide basically the same educational services, DCPS has not proposed a

fundamental change to Z.B.’s then-current educational placement. See D.K., 962 F. Supp. 2d at

233 (holding that “a transfer from [one school] to [another] does not constitute a change in

‘educational placement,’ and the ‘stay put’ provision does not apply” because “[a]s relevant to

the requirements of [the student’s] IEP, [both schools] are the same.”). A stay-put injunction is

accordingly not warranted.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has not demonstrated that DCPS’s

determination that Kennedy Krieger is the appropriate location of services for Z.B. constitutes a

“fundamental change” to Z.B.’s “then-current educational placement.” Accordingly, the Court

will DENY Plaintiff’s Motion for Preliminary Injunction to Compel Stay-Put. An appropriate

Order accompanies this Memorandum Opinion, which sets forth dates for moving forward with

this litigation. However, the Court encourages the parties to consider ways to work together to

resolve this sensitive dispute without further litigation.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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