By v. Arapahoe Cnty. Sch. Dist. 5

954 F.Supp.2d 1197

TAYLOR F., by and through her parents and next friend JON F, next friend Maryann F., Plaintiffs,

v.ARAPAHOE COUNTY SCHOOL DISTRICT 5, Defendant.

Civil Action No. 13–cv–1580–WJM–KMT.

United States District Court, D. Colorado.

July 19, 2013.

Katherine G. Gerland, Law Offices of Louise Bouzari LLC, Englewood, CO, for Plaintiffs.

Kathleen Anne Sullivan, Colorado Association of School Boards, Denver, CO, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR MANDATORY PRELIMINARY INJUNCTION

WILLIAM J. MARTÍNEZ, District Judge.

Plaintiffs Jon F. and Maryann F. bring this action as parents and next friends of Taylor F. (collectively “Plaintiffs”) against Arapahoe County School District 5 (“District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) seeking a mandatory preliminary injunction ordering the District to pay for Taylor's schooling at the Denver Academy. (Compl. (ECF No. 1).)

Before the Court is Plaintiffs' Motion for Mandatory Preliminary Injunction (“Motion”). (ECF No. 4.) The Court held an evidentiary hearing on the Motion on July 12, 2013 and took the Motion under advisement. (ECF No. 17.) For the reasons set forth below, the Motion is granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Jon and Maryann F., bring this action as parents and legal guardians of Taylor F., a minor child that suffers from ADHD, learning disabilities, and anxiety. (Compl. ¶ 7.) Taylor has been a student in the District since 2nd grade and has had an Individualized Education Plan (“IEP”) since 2003. ( Id. ¶ 8.)

When Taylor transitioned from elementary to middle school in the sixth grade (school year 2009–10), she struggled with the class size and the pace of instruction. By seventh grade (2010–11), she was flunking most of her classes, was bullied and teased by her classmates, and was unable to understand most of the instruction. ( Id. ¶ 9.) In December 2010, Plaintiffs removed Taylor from the District and placed her at Denver Academy. ( Id. ¶ 10.) Denver Academy is a private school with smaller classes that focus on educating students with learning difficulties. ( Id. ¶ 11.)

In May 2011, the parties entered into a Settlement Agreement (“Settlement”) that governed the 2010–11 and 2011–12 school years. (ECF No. 9–1.) The Settlement provided that Plaintiffs would assume full responsibility for her education for the 2010–11 and 2011–12 school years. In return, the District paid Plaintiffs $16,681. ( Id.) Plaintiffs waived their right to the IEP process and released the District from any obligation to review, prepare, or develop an IEP for these school terms.

With regard to the parties' obligations after the 2011–12 school year, the Settlement provided:

Fall Term: 2012; IEP Process; Agreement Concerning “Current Educational Placement.” Prior to May 1, 2012, the Parents will contact the District Executive Director of Student Achievement Services in writing and advise the Executive Director and expressly state if they intend to return the Student to the District in the fall of 2012. If so, the Parties agree to develop an IEP for the 2012–13 school year that will supplant the provisions of this Agreement. The parents agree to fully cooperate with this IEP development and that this IEP development will be conducted under the IEP review and reevaluation provisions of the IDEA. The parents agree to provide the District copies of review of any educational records, any necessary parental consent in order to complete any reevaluation requested by the IEP team. Any reevaluations and revisions of the 2012–2013 IEP will be made in accordance with federal and state law. The Parties specifically agree that placement at DA is not the Student's placement for purposes of IDEA's “stay-put” provisions and that her stay-put placement in the event any dispute arises at the conclusion of this Agreement will be the program proposed by the IEP team through the IEP process.

( Id. at 4.)

In the spring of 2012, Plaintiffs requested that the District renew the Settlement for the 2012–13 school year. (Compl. ¶ 14.) The District refused and instead developed an IEP placing Taylor at Cherokee Trail High School, a large public high school in the District. ( Id. ¶ 15.) Plaintiffs rejected the IEP and sent a 10–day notice to the District of their intent to place Taylor at Denver Academy and seek reimbursement for the costs. ( Id. ¶ 16.)

On November 16, 2012, Plaintiffs filed a request for a Due Process hearing pursuant to 20 U.S.C. § 1415. (Compl. ¶ 17.) A Due Process Hearing was held on February 26–28, 2013. ( Id. ¶ 18.) On April 19, 2013, the Administrative Law Judge (“ALJ”) issued his Decision which found: (1) the District failed to adequately assess Taylor in all areas of suspected disability which materially and adversely affected the development on the May 30, 2012 IEP; (2) the District failed to offer Taylor a Free Appropriate Public Education (“FAPE”) as required by the IDEA; and (3) placement at Denver Academy “is reasonably calculated to confer educational benefit in the absence of an offer of FAPE.” (ECF No. 1–1 at 16.) The ALJ ruled that Plaintiffs were “entitled to reimbursement of the cost of tuition and any related services associated with the placement of [Taylor] at Denver Academy during the 2012–2013 school year.” ( Id.)

On June 17, 2013, Plaintiffs filed a Complaint for Mandatory Preliminary Injunction which brings one claim seeking an injunction which mandates that the District pay the costs of maintaining Taylor's education at Denver Academy from the date of the ALJ's decision (April 19, 2013). (Compl. pp. 7–8.) Contemporaneous with the filing of the Complaint, Plaintiffs filed a Motion for Mandatory Preliminary Injunction (“Motion”). (ECF No. 4.) The District responded to the Motion on June 21, 2013. (ECF No. 9.) Plaintiffs filed their Reply Brief on June 26, 2013. (ECF No. 10.) A hearing on the Motion was held on for July 12, 2013. (ECF No. 14.)

II. LEGAL STANDARD

In a traditional motion seeking preliminary injunctive relief, the movant must satisfy the following four-part test: (1) he is substantially likely to succeed on the merits; (2) he will suffer irreparable injury if the injunction is denied; (3) his threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. See Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir.2009). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003).

Plaintiffs contend that this standard is not applicable here, because the IDEA's “stay put” provisions function as an automatic injunction. (ECF No. 10 at 7.)

The Tenth Circuit has not explicitly addressed the issue of whether a court considering a request for injunctive relief involving the IDEA's stay-put provision needs to apply the traditional four-part test. However, it has recognized that IDEA's stay-put “has been construed to impose ‘an automatic statutory injunction’ requiring that the child's then-current educational placement be maintained....” Miller v. Albuquerque Pub. Schs., 565 F.3d 1232, 1252 n. 13 (10th Cir.2009); see also Casey K. ex rel. Norman K. v. St. Anne Comm. High Sch. Dist. No. 302, 400 F.3d 508 (7th Cir.2005) (“The stay-put provision has been interpreted as imposing an automatic statutory injunction ..., like the automatic stay in bankruptcy.”).

At the hearing, the parties agreed that there has been no “stay put” determination in this case. Therefore, the Court construes the instant Motion as an initial request for “stay put” relief. In these circumstances, other circuits have held that the traditional test for injunctive relief is inapplicable. See Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036 (9th Cir.2009) (a party seeking a stay put order does not to show irreparable harm, balancing of the equities, or satisfy the other standards). Because Plaintiffs are not attempting to enforce an existing “stay put” order, the Court finds that they need not satisfy the traditional test for injunctive relief. N.D. v. Haw. Dep't of Educ., 600 F.3d 1104, 1111–12 (9th Cir.2010). Rather, this case is governed by the automatic injunction provisions of the IDEA. Joshua A., 559 F.3d at 1037.

III. ANALYSIS

The key issue for purposes of the instant Motion is IDEA's “stay put” provision which provides, in pertinent part:

[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). The “stay put” provision was included in the IDEA to protect handicapped children and their parents during the review process. Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir.1996).

The federal regulations implementing IDEA provide:

(a) Except as provided in [the regulation specific to expedited hearings for disciplinary changes in placement], 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.

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(d) If the hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents for purposes of paragraph (a) of this section.

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