Smith v. Cheyenne Mountain Sch. Dist. 12

MICHAEL SMITH, Plaintiff, v. CHEYENNE MOUNTAIN SCHOOL DISTRICT 12, Defendant.

Civil Action No. 19-cv-2345-WJM-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

September 5, 2019

Judge William J. Martínez

ORDER DISSOLVING TEMPORARY RESTRAINING ORDER, DENYING 20 U.S.C. § 1415(j) INJUNCTION, AND TERMINATING CASE

Plaintiff Michael Smith ("Smith"), proceeding pro se, files this lawsuit against Defendant Cheyenne Mountain School District 12 ("Cheyenne 12"). Smith's sole cause of action is claim for an injunction requiring Cheyenne 12 to continue educating his eleven-year-old autistic son, R.S., while Smith and Cheyenne 12 work through a dispute over R.S.'s "placement," as that term is understood under the Individuals with Disabilities in Education Act ("IDEA" or "Act"), 20 U.S.C. §§ 1400 et seq.

Currently before the Court is Smith's Verified Motion for Temporary Restraining Order and Preliminary Injunction ("Motion"). (ECF No. 3.) The Court previously granted the TRO portion of the Motion. (See ECF No. 9; see also ECF No. 17 (extending TRO).) The Court then called for and received further briefing on the remainder of the Motion. (See ECF Nos. 12, 16, 18.) Although the Court would normally hold a hearing on a matter such as this, the Court finds that a hearing would not help to resolve the questions presented because:

• Smith's complaint (ECF No. 1), Motion (ECF No. 3), and reply in support of the Motion (ECF No. 16) are all verified;

• Cheyenne 12's assertions of fact are made by way of declaration or affidavit (see ECF Nos. 12-1, 18-1, 19-1); and

• the parties' briefs do not raise any disputes of fact or issues of credibility.

Accordingly, the Court will rule on the papers. For the reasons explained below, the Court construes the preliminary injunction portion of the Motion as a request for a statutory "stay-put" injunction as provided for by IDEA (see 20 U.S.C. § 1415(j))—in contrast to an equitable injunction under Federal Rule of Civil Procedure 65. The Court finds that § 1415(j) relief is unavailable in these circumstances, however. The Court therefore denies the remainder of the Motion, dissolves the TRO, and terminates this case.

I. BACKGROUND

Based on the record presented, the Court makes the following findings of fact.

R.S. does not live within Cheyenne 12's boundaries. When living with his father (i.e., Plaintiff Smith), he lives in the Harrison School District ("Harrison"). (ECF No. 12-1 at 30, ¶ 2.)¹ When living with his mother, Ramona Smith, he lives in the Colorado Springs School District 11 ("C.S. 11"). (Id. at 32, ¶ 2.) Since beginning elementary school, R.S. has attended The Vanguard School ("Vanguard"), one of Cheyenne 12's charter schools. (ECF No. 1 ¶¶ 1, 9.) This is possible through Colorado's interdistrict school choice statute. See Colo. Rev. Stat. §§ 22-36-101 et seq.

R.S.'s autism qualifies him for special education and related services, which are provided according to his IDEA-mandated Individualized Education Program ("IEP"). (ECF No. 1 ¶ 3.) His most recent IEP is dated May 6, 2019, toward the end of his fifth-grade year. (Id. ¶ 4; ECF No. 12-1 at 3-4.) It names his "Home School" as Soaring Eagles Elementary (a Harrison school) and his "School of Attendance" as Vanguard. (Id. at 3.) It describes in detail the effects of his autism, his needs, the amount of time he will spend in general versus special education classes, and the amounts and types of extra services he will receive. (Id. at 5-24.) The Court will provide more details from the IEP as they become relevant to the Court's analysis.²

On May 30, 2019, Vanguard's executive director e-mailed a letter to Smith stating that "Vanguard would have to continue to hire a paraprofessional to work full-time with [R.S.] in order to provide the services contained in [his] IEP during the 2019-20 school year. As a result, The Vanguard School is denying [R.S.'s] enrollment for the 2019-20 school year." (ECF No. 1 ¶ 7.)

On August 7, 2019, Smith filed "a Due Process Complaint with the Colorado Department of Education" contesting Vanguard's action. (Id. ¶ 10.)³ By doing so, Smith invoked the IEP grievance process that IDEA requires states receiving funding under the Act to make available. See 20 U.S.C. § 1415(a). Smith's Due Process Complaint was "referred to Colorado's Office of Administrative Courts" and is currently pending. (ECF No. 1 ¶ 10.)

R.S.'s first day of sixth grade at Vanguard—assuming he should have been enrolled—was August 14, 2019. (Id. ¶ 14.) "On those days when R.S. has been dropped off" at Vanguard, he has been "confined to an office, separated from his peers, and provided with no educational services." (Id. ¶ 15.)

On August 20, 2019, the Court entered the TRO, restraining Cheyenne 12 "from refusing to provide services to R.S. at The Vanguard School in accordance with R.S.'s IEP while Smith's Due Process Complaint (Colorado Office of Administrative Courts docket number 2019:133) is being adjudicated." (ECF No. 9 at 5.)

II. NATURE OF 20 U.S.C. § 1415(j) RELIEF & LEGAL STANDARD

Smith's asserts a single cause of action. Specifically, he requests an injunction under 20 U.S.C. § 1415(j), which reads in relevant part as follows: "[D]uring the pendency of any proceedings conducted pursuant to this section [such as the Due Process Complaint] . . . the child shall remain in the then-current educational placement of the child . . . ." Section 1415(j) is often referred to as IDEA's "stay-put" provision and is generally "construed to impose an automatic statutory injunction requiring that the child's then-current educational placement be maintained" so that a school district cannot "effect[] unilateral change in a child's educational program." Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1252 n.13 (10th Cir. 2009) (internal quotation marks omitted).

In this light, the plaintiff need not satisfy the traditional four-factor test for a preliminary injunction under Rule 65(a). See, e.g., Taylor F. ex rel. Jon F. v. Arapahoe Cnty. Sch. Dist. 5, 954 F. Supp. 2d 1197, 1200 (D. Colo. 2013). Rather, the only questions are "What is the child's 'then-current educational placement'?" and "Has the child's then-current educational placement been changed?" If the answer to the latter question is "yes," the injunction is mandatory for the duration of the state-created grievance process, including appeals. See, e.g., Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009) (stay-put injunction persists until appeals are exhausted).

Moreover, strictly speaking, there is no "preliminary" form of the stay-put injunction, to be followed by a "permanent" injunction after discovery and trial. The stay-put injunction is either entered or it is not, and the case is over (assuming it is the only claim for relief). Of course, there may be cases in which a record sufficient to determine "then-current educational placement" cannot be assembled fast enough to prevent some sort of irreparable harm to the child. In those cases, a true (equitable) TRO and/or preliminary injunction may be appropriate if the movant can satisfy the traditional test for such relief. But once the proper record has been assembled, the Court's task is not to apply the traditional factors for deciding whether to issue a permanent injunction, see eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006), but simply to decide whether the child's "placement" has been unilaterally changed or not.

Previously, the Court found that Smith satisfied the equitable factors required for a TRO because, on the record as it then stood, (i) it appeared that Smith was likely to succeed to proving that Vaguard is R.S.'s "placement," (ii) R.S. was experiencing irreparable harm by being kept in a school office all day, (iii) the harm to R.S. outweighed the harm to Cheyenne 12, and (iv) a TRO was in the public interest. (See ECF No. 9.) Since then, the briefing and exhibits have fully framed the issue and there is no need to consider interim relief, i.e., a preliminary injunction under Rule 65.

So, to repeat, the questions now before the Court are "What is the child's 'then-current educational placement'?" and "Has the child's then-current educational placement been changed?" Unfortunately, "[t]he IDEA does not define 'current educational placement.'" Erickson v. Albuquerque Pub. Sch., 199 F.3d 1116, 1121 (10th Cir. 1999).

[S]ome courts hold that the dispositive factor is the IEP in place when the stay-put provision is invoked. . . . [¶] Other circuits use a fact-driven approach in stay-put cases, defining educational placement as something more than the actual school attended by the child and something less than the child's ultimate educational goals.

Id. (internal quotation marks omitted). The Tenth Circuit has not itself provided a definition of "then-current educational placement," but it has provided a shortcut analysis: "An educational placement is changed when a fundamental change in, or elimination of, a basic element of the educational program has occurred." Id. at 1122. In other words, it may not be necessary to establish all the boundaries of the child's then-current educational placement. Rather, if the thing that has been fundamentally changed or eliminated is not a basic element of the IEP, then there has been no change of placement against which the § 1415(j) injunction would operate.

III. ANALYSIS

In light of Erickson, the Court must ask whether education at Vanguard is a basic element of R.S.'s IEP. Sometimes a specific school is part of the "placement," see, e.g., A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 679-82 (4th Cir. 2007), but frequently it is not, see, e.g., Rachel H. v. Hawaii Dep't of Educ., 868 F.3d 1085, 1089-93 (9th Cir. 2017); Middleton v. District of Columbia, 312 F. Supp. 3d 113, 130-31 (D.D.C. 2018); Z.B. ex rel. Sanchez v. District of Columbia, 292 F. Supp. 3d 300, 304- 06 (D.D.C. 2018).⁴

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