Wednesday, March 21, 2012

Questionable Stay-Put Decision from DDC

Last Friday, Judge Colleen Kollar-Kotelly of the United States District Court for the District of Columbia issued an opinion reflecting what I might call a non-obvious interpretation of the IDEA's stay-put provision.  The case is Johnson v. District of Columbia, --- F.Supp.2d ----, 2012 WL 883125 (D.D.C., Mar. 16, 2012).  The plaintiff's son, M.J., is a sixth grader in the D.C. Public Schools.  M.J. had an IEP throughout elementary school.  When he entered sixth grade this past fall, he began attending his neighborhood middle school, Deal Middle School, with his classmates.  The school district formulated a new IEP in October to reflect his attendance in middle school, and M.J.'s father challenged the IEP in a due process proceeding.

The hearing officer agreed that the IEP failed to provide a free appropriate public education.  The hearing officer "found that rather than transfer M.J. to a school that could provide the services outlined in his IEP, the District had simply revised M.J.'s IEP to match the lower level of services available at Deal."  The hearing officer also "found that Deal could only provide the specialized instruction in a 'resource setting with [intellectually disabled] students or a co-taught setting in general education classrooms only, neither of which is appropriate for [M.J.],'" and that, "therefore, 'the location of services offered by [the District] pursuant to this decision must be something other than [M.J.'s] current DCPS middle school.'"  Following that decision, the school district and M.J.'s father formulated a new IEP in February 2012.  Although the new IEP apparently did not identify the particular school to which M.J. would be assigned, it did indicate that he would be assigned to a school other than Deal.  The district assigned M.J. to the McFarland Middle School.  The district court's opinion describes what happened next:
Plaintiffs allege they asked for an opportunity to visit the school before consenting to M.J. attending MacFarland.  After visiting the school, the Plaintiffs objected, but the District moved forward with transferring M.J. to MacFarland, including by un-enrolling M.J. from Deal.  On February 6, 2012, Plaintiffs filed a second due process complaint, alleging MacFarland could not provide the specialized instruction required by M.J.'s new IEP.  Three days later, Plaintiffs filed a motion with the Hearing Officer invoking the stay-put provision and requesting that M.J. be placed at a private school while the second due process complaint is adjudicated.  The Hearing Officer denied Plaintiffs' motion, finding that “on 2/1/12, the revised IEP became [M.J.'s] current educational program and MacFarland [Middle School] became [M.J.'s] current placement.” Plaintiffs subsequently filed the present action, seeking an injunction requiring M.J. to attend Deal or a private school of his parent's choice pending resolution of the second due process complaint.
The plaintiffs moved for summary judgment.  They argued that Deal was M.J.'s "then-current educational placement" pursuant to the IDEA's stay-put provision, 20 U.S.C. 1415(j), and that the district was accordingly prohibited from transferring M.J. out of Deal during the pendency of due process proceedings. The district court rejected that argument.  Because, in the district court's view, M.J.'s parents had agreed to the substance of the February 1 IEP -- just not the school to which M.J. was assigned under it -- the court concluded that the February 1 IEP was the "then-current educational placement" when they filed their second due process complaint five days later.  The court also concluded that the plaintiffs' argument was "based on the flawed premise that M.J.'s physical placement and 'educational placement' are synonymous."  The court held that "[s]ince there is no challenge to the IEP itself, until the Hearing Officer indicates otherwise, the District is free to place M .J. at any facility that it determines can provide the services required by the February 2012 IEP."

This is not, I reiterate, an obvious reading of the stay-put provision.  I will be interested to follow further proceedings in this case.

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