Jorie Wimbish et.al. v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JORIE WIMBISH et al., )
)
Plaintiffs, )
)
)
v. ) Civil No. 15-1429(EGS)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION
On September 1, 2015, Plaintiff Jorie Wimbish, on behalf of
her minor daughter, J.W., 1 filed a Motion for Preliminary
Injunction, Docket No. 3, seeking to invoke the “stay-put”
provision of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1415(j), to require the District of
Columbia (“the District”) to fund J.W.’s placement at a private
school during the pendency of all administrative and judicial
proceedings in Plaintiffs’ underlying IDEA case. Following a
hearing on Plaintiffs’ motion on October 8, 2015, the Court
granted the motion, and requested supplemental briefing on the
issue of whether the District would be required to fund 50% or
100% of Plaintiffs’ cost of attendance at the private school.
1 The minor shall be referred to as J.W., pursuant to Local Civil
Rule 5.4(f)(2).
1
October 9, 2015 Minute Order. This Memorandum Opinion
accompanies the Court’s October 8, 2015 oral ruling and October
9, 2015 Minute Order, and resolves the outstanding issue
regarding the District’s funding obligation. For the following
reasons, Plaintiffs’ motion to require the District of Columbia
to fund J.W.’s placement at Stuart Hall is GRANTED. The District
shall fund 100% of Plaintiffs’ cost of attendance at Stuart
Hall, retroactive to the commencement of the 2015-2016 school
year and continuously thereafter through the completion of all
administrative and judicial proceedings in this matter, unless
the parties otherwise agree.
I. BACKGROUND
J.W. is a 14-year-old student whose parents reside in the
District of Columbia. Pls.’ Mem. Supp. Mot. Prelim. Inj. (“Pls.’
Mem.”), Docket No. 3-1 at 1; Def.’s Mem. Opp. Mot. Prelim. Inj.
(“Def.’s Mem. Opp.”), Docket No. 9 at 2. Sometime in 2007 or
2008, J.W. was deemed eligible for special education services
under the IDEA as a student with a disability under the
classification “Other Health Impairment (ADHD)”. Pls.’ Mem. at
1; Def.’s Mem. Opp. at 2. From 2008 to 2014, D.C. Public Schools
(“DCPS”) funded J.W.’s placement at Kingsbury Day School
(“Kingsbury”), a full-time special education day school. Pls.’
Mem. at 2; Def.’s Mem. Opp. at 2. Early in the 2013-2014 school
year, Ms. Wimbish and DCPS agreed that Kingsbury was too
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restrictive a placement for J.W. and that she should transfer to
a less-restrictive environment. Pls.’ Mem. at 1; Def.’s Mem.
Opp. at 2.
A. June 2014 Individualized Education Program (“IEP”)
In June of 2014, prior to the beginning of the 2014-2015
school year, Ms. Wimbish and representatives from DCPS met to
develop an updated individualized education program (“IEP”) for
J.W. Pls.’ Mem. Ex. 1, Docket No. 3-3 (“March HOD”) at 8. The
IEP states that J.W. experiences anxiety which causes
disruptions to her school day. See generally Pls.’ Mem. Ex. 3,
Docket No. 3-5 (“2014 IEP”). The IEP recommended 30 hours per
week of specialized instruction outside the general education
environment and various classroom accommodations including
preferential seating and small group testing. Id. at 13.
Following the June 2014 meeting, there was some dispute between
the parties as to the finality of the IEP developed that day. In
July 2014, DCPS reached out to Ms. Wimbish to schedule another
IEP meeting to revise or rewrite the June IEP. March HOD at 9.
Ms. Wimbish believed that the June IEP was final and refused to
meet with DCPS again. Id.B. January 5, 2015 Due Process Complaint
On January 5, 2015, Ms. Wimbish filed a “due process
complaint” with DCPS’ Office of Dispute Resolution alleging that
DCPS failed to develop an appropriate IEP for J.W. for the 2014-
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2015 school year and failed to propose an adequate school
placement. See generally id. Ms. Wimbish, with the encouragement
of DCPS officials, had enrolled J.W. at Stuart Hall, a private
boarding school in Staunton, VA for the 2014-2015 school year.
Id. at 9. The administrative complaint sought reimbursement from
DCPS for J.W.’s cost of attendance. 2 Id.In a decision issued by an Independent Hearing Officer
(“Hearing Officer Determination” or “HOD”), dated March 29,
2015, the Hearing Officer found that DCPS had denied J.W. a free
appropriate public education (“FAPE”) for the 2014-2015 school
year and ordered DCPS to fund 50% of Plaintiffs’ tuition
expenses at Stuart Hall for that year. Id. at 22. As the Hearing
Officer explained:
[T]he District may be required to pay for educational
services obtained for a student by a student’s parent
if the services offered by the District are inadequate
or inappropriate (“first criterion[]”)[,] the services
selected by the parent are appropriate (“second
criterion”), and equitable considerations support the
parent’s claim (“third criterion”), even if the
private school in which the parents have placed the
child is unapproved.
2 While Stuart Hall ordinarily costs approximately $45,000 in
tuition annually, J.W. had received a substantial financial aid
award of approximately $30,000, placing her cost of attendance
at approximately $14,000 annually. See March HOD at 8.
4
Id. at 12 (citing School Committee of the Town of Burlington v.
Dep’t of Educ., Mass., 471 U.S. 359 (1985); Florence Cnty Sch.
Dist. Four et al. v. Carter by Carter, 510 U.S. 7 (1993)).
On the first criterion, the Hearing Officer determined that
the District’s proposed placement was inappropriate or
inadequate, resulting in a denial of a FAPE for J.W. for the
2014-2015 school year. Id. at 14-16. First, the Hearing Officer
found that the June 2014 IEP “clearly provides the Student with
an inappropriately restrictive program” in contravention of the
IDEA’s requirement that children be placed in the “least
restrictive environment” appropriate for their disability. Id.at 13-15 (citing 20 U.S.C. § 1412(a)(5); N.T. v. Dist. of
Columbia, 839 F. Supp. 2d 29, 34-35 (D.D.C. 2012)). In the
alternative, the Hearing Officer held that, if the June 2014 IEP
was merely a “draft” IEP, as DCPS had argued, then J.W. had “no
IEP at all for the 2014-2015 school year.” Id. at 15. Under
either scenario, the Hearing Officer concluded that DCPS denied
J.W. a FAPE for the 2014-2015 school year. Id.On the second criterion, the Hearing Officer found that Ms.
Wimbish’s enrollment of J.W. at Stuart Hall was “proper” under
the Act. Id. at 18. Even though Stuart Hall was a “general
education school,” the Hearing Officer found that it provided
J.W. the services she required, such as small class sizes,
individualized interventions, testing accommodations,
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psychiatric counseling, and “check-ins” with a social worker Id.
at 17.
Finally, on the third criterion, that is, whether the
equitable considerations supported the parent’s claim, the
Hearing Officer ordered a 50% reduction in DCPS’s obligation to
fund J.W.’s placement at Stuart Hall. Id. at 21. He found that
Ms. Wimbish’s refusal to meet with DCPS to rewrite or revise the
June 5, 2014 IEP merited a 50% reduction in the reimbursement
award. Id. However, he refused to deny tuition reimbursement
altogether, finding that Ms. Wimbish did cooperate in the IEP
process until June of 2014. Id. Neither party appealed the March
29, 2015 Hearing Officer Determination.
C. July 2015 IEP Meeting
In July 2015, after the 2014-2015 school year had
concluded, DCPS contacted Ms. Wimbish to schedule an IEP meeting
for J.W. prior to the start of the 2015-2016 school year. Pls.’
Mem. Ex. 10, Docket No. 3-12 at 2. Ms. Wimbish and her counsel
met with DCPS on August 18, 2015. Pls.’ Mem. at 7; Def.’s Mem.
Opp. at 3. At the meeting, DCPS informed Ms. Wimbish that it had
determined that J.W. was no longer eligible for special
education services, and that rather than create an IEP, the
meeting would instead develop a § 504 plan for accommodations. 3
3 “Section 504 plan” refers to Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 701 et seq., which prohibits programs
6
Pls.’ Mem. at 7; Def.’s Mem. Opp. at 3. Ms. Wimbish and her
counsel indicated that they were surprised to learn that DCPS
had terminated J.W. from special education services, as they
expected to proceed with an IEP meeting that day. Pls.’ Mem. at
8. Ms. Wimbish felt unprepared to participate in a § 504 plan
meeting and asked that the meeting be adjourned. Id. DCPS
continued the meeting in the absence of Ms. Wimbish and her
counsel and developed a § 504 plan for J.W. Def.’s Mem. at 4-5.
D. August 20, 2015 Due Process Complaint
On August 20, 2015, Ms. Wimbish, through counsel, filed a
second due process complaint challenging J.W.’s removal from
special education services. Pls.’ Mem. at 9. The complaint
alleges that DCPS (1) failed to evaluate J.W. prior to exiting
her from formal special education services; (2) failed to
provide a prior written notice prior to changing the student’s
eligibility; (3) failed to have an IEP in place prior to the
beginning of the 2015-2016 school year; (4) failed to provide an
appropriate placement for J.W. prior to the beginning of the
funded by the federal government, from discriminating on the
basis of disability. As one court explained, “[t]hough IEPs and
504 plans are conceptually similar in that both are designed to
provide a free appropriate public education to students with a
disability, the two plans are held to different standards . . .
. An IEP is sufficient to satisfy the free appropriate public
education requirement under Section 504, but a 504 plan will not
necessarily satisfy the same requirement under the IDEA.” K.D.
v. Starr, 55 F. Supp. 3d 782, 785 n.3 (D. Md. 2014).
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2015-2016 school year; and (5) retaliated against Ms. Wimbish
for exercising her right to litigate claims through a due
process hearing and for contacting the D.C. City Council. Id.Upon learning that DCPS did not intend to fund any portion
of J.W.’s placement at Stuart Hall during the pendency of J.W.’s
IDEA case, Plaintiffs filed a motion for a “stay-put” injunction
on September 1, 2015. See generally Pls.’ Mot., Docket No. 3;
Pls.’ Mem. Ex. 15 at 3. The motion sought to “maintain J.W.’s
placement in order to protect her right to receive a free and
appropriate public education (“FAPE”).”. Pls.’ Mot. at 1. 4
II. LEGAL STANDARD
The IDEA provides that “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 . . . .” 20 U.S.C. § 1415(j). Commonly referred to as
4 The Hearing Officer issued his decision on Plaintiffs’ August
20, 2015 due process complaint on November 16, 2015. Pls.’ Rep.
Sup. Mot. Prelim. Inj., Docket No. 14 at 1. On December 16,
2015, Plaintiffs filed a partial appeal of the Hearing Officer’s
Determination, which is the subject of another action before
this Court. See Wimbish et al. v. Dist. of Columbia, 15-CIV-2182
(EGS). The ultimate merits of Plaintiffs’ partial appeal of the
Hearing Officer’s Determination have no legal bearing on
Plaintiffs’ motion for a preliminary injunction, and need not be
discussed here. See District of Columbia v. Vinyard, 901 F.
Supp. 2d 77, 86-87. As the two cases involve common questions of
law or fact and the identical parties, the Court will sua sponte
consolidate the two cases under Case No. 15-1429. See Fed. R.
Civ. P. 42(a).
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the “stay-put provision,” this section requires the educational
agency to maintain a disabled child in his or her “current
educational placement” through both administrative and judicial
proceedings, including an appeal from an administrative decision
following a due process hearing. 34 C.F.R. § 300.518(a). The
purpose of the stay-put injunction is to prevent educational
authorities from unilaterally moving a child from his or her
current placement. Alston v. Dist. of Columbia, 439 F. Supp. 2d
86, 88 n.1 (D.D.C. 2006).
A parent can invoke the stay-put provision to request
injunctive relief when a school system proposes a "fundamental
change in, or elimination of, a basic element of the then-
current educational placement.” Dist. of Columbia v. Vinyard,
901 F. Supp. 2d 77, 83 (D.D.C. 2012)(citing Lunceford v. Dist.
of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984))
(alterations omitted). As courts have consistently held,
maintenance of a child’s current placement includes full payment
for the program in which the student is placed, and a failure by
the school district to fund a child’s current educational
placement constitutes grounds for stay-put injunctive relief.
See e.g., Petties v. Dist. of Columbia, 881 F. Supp. 63, 66
(D.D.C. 1995).
In evaluating requests for injunctive relief under the
stay-put provision, the traditional four-part test for a
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preliminary injunction does not apply. Dist. of Columbia v.
Oliver, 991 F. Supp. 2d 209, 212 (D.D.C. 2013); see also
Vinyard, 901 F. Supp. 2d at 84 (holding that a school’s
“unilateral change” to a student’s current educational placement
entitles movants to “enforcement of their stay-put rights
pursuant to § 1415(j), irrespective of their ability to
demonstrate irreparable harm, likelihood of success on the
merits, or a balancing of equities in their favor.”). Rather,
the party invoking the stay-put provision must show that (1)
proceedings under the IDEA are pending; and (2) prevention of a
change in the “then-current educational placement of the child
is sought.” Eley v. Dist. of Columbia, 47 F. Supp. 3d 1, 8
(D.D.C. 2014).
III. DISCUSSION
There is no dispute that IDEA proceedings are pending in
this matter. See Def.’s Mem. Opp. at 7. Accordingly, the
question for the Court was whether Plaintiffs’ motion sought
prevention of a change in J.W.’s “current educational
placement.” See Eley, F. Supp. 3d at 8. Plaintiffs argued that
DCPS is proposing a fundamental change in J.W.’s education
placement – namely, that she be removed from special educational
services altogether. Pls.’ Mem. at 10. The District did not
dispute that it sought to remove J.W. from special education
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services, 5 rather the District argued that Plaintiffs failed to
demonstrate that Stuart Hall is J.W.’s “current educational
placement” for purposes of this stay-put injunction. Def.’s Mem.
Opp. at 9.
A. Stuart Hall is J.W.’s Current Educational Placement
for Purposes of This Stay-Put Injunction
As the D.C. Circuit has observed, “the issuance of an
injunction under this ‘stay put’ provision depends predominantly
on the determination of what constitutes [the Student’s]
‘current educational placement.’” Leonard v. McKenzie, 869 F.2d
1558, 1563-64 (D.C. Cir. 1989). The IDEA does not define the
term “then-current educational placement,” but the 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 v. Dist. of Columbia, 839 F.
Supp. 2d 173, 177 (D.D.C. 2012). Typically, “the dispositive
5 Indeed, the District devoted substantial space in its brief to
the argument that J.W. no longer requires special education
services. See Def.’s Mem. Opp. at 3-5, 10-11. As the ultimate
merits of Plaintiffs’ IDEA action have no bearing on the Court’s
analysis under the stay-put provision, the Court cannot consider
these arguments here. See Vinyard, 901 F. Supp. 2d at 87
(“courts have made patently clear that a stay-put determination
must be made without consideration of the merits of the
underlying dispute. This is because the stay-put provision
represents Congress’ policy choice that all [disabled] children,
regardless of whether their case is meritorious or not, are to
remain in their then current educational placement until the
dispute with regard to their placement is ultimately
resolved”)(internal citations and quotations omitted).
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factor in deciding a child’s ‘current educational placement’
should be the IEP . . . actually functioning when the ‘stay put’
is invoked.” Id. (alterations omitted). Where the child lacks a
functioning IEP and attends a non-public school selected by the
parent, the non-public school qualifies as the “then-current
educational placement” for stay-put purposes “so long as the
hearing officer made findings on the merits that the school
system had failed to provide a FAPE and the private program
chosen by the parents was appropriate.” Vinyard, 901 F. Supp. 2d
at 86; see also Eley, 47 F. Supp. 3d at 17; Oliver, 991 F. Supp.
2d at 214.
Here, the March 29, 2015 HOD establishes that Stuart Hall
is J.W.’s then-current placement. First, the Hearing Officer
found that DCPS had denied J.W. a FAPE by either providing her
an impermissibly restrictive IEP or by providing her no IEP at
all. See March HOD at 14-16. Second, the Hearing Officer
determined that Stuart Hall was an appropriate placement for
J.W. under the Act. Id. at 16-18. Reviewing the evidence before
him, the Hearing Officer found that Stuart Hall provided J.W.
with the accommodations and individualized interventions she
required, including preferential seating, testing
accommodations, psychiatric counseling, and check-ins with a
social worker. Id. at 17. Further, the Hearing Officer found
that DCPS had presented no evidence that Stuart Hall was
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inappropriate or inadequate in any way. Id. at 18. Accordingly,
the Hearing Officer concluded that Ms. Wimbish’s selection of
Stuart Hall was “proper” under the Act. Id.
The District argued that the March 29, 2015 HOD is a mere
“reimbursement order” rather than a determination on the merits
that Stuart Hall is an appropriate placement for J.W. Def.’s
Surrep., Docket No. 10 at 2. That distinction has not persuaded
judges of this Court; a reimbursement order may be sufficient to
establish placement for stay-put purposes as long as the Hearing
Officer has set forth a finding on the merits that the school is
appropriate for the student. Vinyard, 901 F. Supp. 2d at 86;
Oliver, 991 F. Supp. 2d at 216-17. The Hearing Officer’s clear
findings that Stuart Hall provided J.W. with the services and
accommodations she required are sufficient to establish Stuart
Hall as J.W.’s then-current educational placement. 6
6
Further weakening their position, the District provided no
reasonable alternative placement for J.W. for the pendency of
these proceedings. The District argued the appropriate stay-put
placement for J.W. is “technically” Kingsbury, as the last
location where J.W. had a functioning IEP. Defs.’ Mem. at 8.
However, the District freely acknowledged that Kingsbury is no
longer appropriate for J.W. and that she requires a less
restrictive environment. Id. at 8-9. The District proposed that
J.W. attend Cardozo High School, a public general education
campus, “in light of the fact that J.W. no longer qualifies for
special education services.” Id. at 10. This argument goes to
the underlying merits of J.W.’s case and may not be considered
when ruling on a motion for a stay-put injunction. See Vinyard,
901 F. Supp. 2d at 87.
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Finally, The District argued that Stuart Hall cannot be an
appropriate placement for J.W. because the school lacks a
Certification of Approval (“COA”) from the Office of the State
Superintendent (“OSSE”). Def’s. Mem. Opp. at 10. This argument
also fails. The appropriateness of a student’s placement under
the IDEA does not turn on formalities or official seals of
approval, but rather on whether the education “provided by the
private school is reasonably calculated to enable the child to
receive educational benefits.” Leggett v. Dist. of Columbia, 793
F.3d 59, 70-71 (D.C. Cir. 2015). Supreme Court precedent clearly
establishes that a parent may be entitled to reimbursement for
private school placement, even where the school is not on the
state’s list of approved schools. Florence Cty. Sch. Dist. Four
v. Carter by Carter, 510 U.S. 7, 11, 14 (1993); see also Eley,
47 F. Supp. 3d at 18 n. 13 (finding a school appropriate for
purposes of a stay-put injunction, even where the school was not
certified by OSSE). The March HOD found that Stuart Hall was an
appropriate placement for J.W. even though the school was not
certified by OSSE. This finding of appropriateness is
sufficient: Stuart Hall is J.W.’s then-current educational
placement for purposes of this stay-put injunction.
B. The District is Obligated to Fund 100% of J.W.’s Cost
of Attendance at Stuart Hall During the Pendency of
These Proceedings
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Once the child’s “then-current educational placement” has
been established, as J.W.’s was on October 8, 2015, “financial
responsibility on the part of the local school district
follows.” See Susquentia Sch. Dist. v. Raelee S., 96 F.3d 78, 83
(3d Cir. 1996); 20 U.S.C. § 1401(9)(A)(“The term ‘free
appropriate public education’ means special education and
related services that have been provided at public expense,
under public supervision and direction, and without
charge.”)(emphasis added); see also Vinyard, 901 F. Supp. 2d at
83 (“[a]s courts have consistently held, maintenance of a
child’s current placement includes full payment for the program
in which the student is placed . . .”).
In this case, the March 2015 HOD reduced the District’s
obligation to pay by 50% for the 2014-2015 school year based on
equitable considerations relating to Ms. Wimbish’s conduct in
June of 2014. March HOD at 21. The Plaintiffs encourage the
Court to limit the 50% reduction to the 2014-2015 school year,
arguing that the equitable considerations leading to the
reduction were limited to that time period. Pls.’ Supp. Mem.,
Docket No. 11 at 6. The District argues that their obligation to
maintain J.W.’s placement requires the District to continue to
fund 50% of Plaintiffs’ cost of attendance, and no more. Def.’s
Opp. Pls.’ Supp. Mem., Docket No. 13 at 1-2. Neither party
identified an analogous case in support of their position.
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The Court agrees with Plaintiffs that the District must
fund 100% of the Plaintiffs’ cost of attendance at Stuart Hall
during the pendency of all administrative and judicial
proceedings in this case. First, the HOD’s reduction in tuition
reimbursement was expressly limited to the 2014-15 school year.
See March HOD at 22 (“Respondent shall fund 50% of the
Petitioner’s obligation to pay for the Student’s placement at
[Stuart Hall] for the 2014-2015 school year.”). Second, the 50%
reduction was based on conduct that took place in 2014, and the
HOD provides no indication the Hearing Officer intended to
punish Ms. Wimbish for that conduct beyond the 2014-2015 school
year. See id. at 21-22. Finally, Ms. Wimbish’s financial
situation, strained immensely by the District’s failure to
provide her with any reimbursement for the 2015-2016 school year
thus far, no longer allows her to fund 50% of J.W.’s tuition at
Stuart Hall. See Wimbish Dec., Docket No. 11-2 at 1-2. The
guarantees of the stay-put provision are rendered hollow if such
guarantees are conditioned on the parent’s ability to pay for
their child’s private placement. In order to ensure that J.W.
receives a free appropriate public education during the pendency
of all administrative and judicial proceedings in her IDEA case,
the District must fund 100% of Plaintiffs’ cost of attendance at
Stuart Hall until the conclusion of these proceedings, unless
the parties otherwise agree.
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IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to require
the District of Columbia to fund J.W.’s placement at Stuart Hall
is GRANTED, and the District shall fund 100% of Plaintiffs’ cost
of attendance at Stuart Hall retroactive to the beginning of the
2015-2016 school year and continuously thereafter through the
completion of all administrative and judicial proceedings in
this matter, unless the parties otherwise agree. An appropriate
order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
December 22, 2015
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