Z.B. v. Dist. of Columbia
Z.B. v. Dist. of Columbia
Opinion of the Court
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,
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."
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. ,
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.
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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.
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.
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 *304locations 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.
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 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. ,
Accordingly, the Court's focus is not on the particular school location DCPS has *305proposed 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,
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).
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."
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 *306refers 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 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).
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.
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. ,
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.
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
• Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. for Preliminary Injunction to Compel 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).
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.
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.
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");
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.
Reference
- Full Case Name
- Z.B., a minor, BY AND THROUGH his mother, Sylvia SANCHEZ v. The DISTRICT OF COLUMBIA
- Cited By
- 4 cases
- Status
- Published