                  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

                                  2
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-

                                3
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,

                                5
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).
                                7
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).
                                 8
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

                                9
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



                               10
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).
                                11
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

                               12
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.
                                13
     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



                               14
     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.

                               15
     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.

                               16
  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




                                 17
