                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 MORRIS JOHNSON, et al.,

    Plaintiffs,
                                                           Civil Action No. 12-303 (CKK)
      v.

 DISTRICT OF COLUMBIA,

    Defendant.


                                 MEMORANDUM OPINION
                                    (March 16, 2012)

       Plaintiff Morris Johnson filed suit as the parent and next friend of his minor son, M.J.,

against Defendant the District of Columbia (“the District”). M.J. receives special education

services from the District pursuant to the Individuals with Disabilities Education Improvement

Act (“IDEA”),1 20 U.S.C. § 1400 et seq. This suit seeks to force the District to allow M.J. to

attend his former school (Deal Middle School) while the challenge to M.J.’s placement at

McFarland Middle School is under review by a hearing officer. Concurrently with the

Complaint, Plaintiffs filed a [2] Motion for a Temporary Restraining Order. During a telephonic

conference call with the Court, the parties agreed to convert Plaintiffs’ TRO request into briefing

on the merits of Plaintiffs’ underlying Complaint, to be completed on an expedited basis.

2/27/12 Minute Order. Plaintiffs subsequently filed a [6] Motion for Summary Judgment,




       1
          The IDEA was re-authorized and re-codified pursuant to the Individuals with
Disabilities Education Improvement Act in 2004, Pub. L. No. 108–446, 118 Stat. 2647 (2004).
The short title of the re-authorized and amended provisions remains the Individuals with
Disabilities Education Act. See Pub. L. No 108–446, § 101; 118 Stat. at 2647; 20 U.S.C. § 1400
(2006). Accordingly, the Court refers to the amended Act herein as the IDEA.
supplementing their prior motion. The summary judgment motion is now fully briefed2 and ripe

for adjudication. After considering the parties’ briefs, the accompanying exhibits, and the

applicable authorities, Plaintiffs’ Motion for Summary Judgment is DENIED.

                                          I. BACKGROUND

        A.        Statutory Framework

        The IDEA was enacted to “ensure that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and related services

designed to meet their unique needs and prepare them for further education, employment, and

independent living.” 20 U.S.C. § 1400(d)(1)(A). Once a child is identified as disabled, the

school district must convene a meeting of a multi-disciplinary team to develop an individualized

education program (“IEP”) for the student. See § 1414.3 The IEP must include a variety of

information, including the child’s current levels of academic achievement and functional

performance, measurable annual goals, how the child’s progress towards the goals will be

measured, and the special education and related services to be provided to the child.

§ 1414(d)(1)(A)(I).

        If the parent of a child receiving services pursuant to the IDEA believes his or her child’s

IEP or school placement is inadequate, the parent may file a “due process complaint.” E.g.,

§ 1415(b)(7)(A); § 1415(k)(3). The IDEA further provides that




        2
        See Pls.’ Mot. for a Temp. Restraining Order, ECF No. [2]; Pls.’ Mot. for Summ. J.,
ECF No. [6]; Def.’s Opp’n, ECF No. [7]; Pls.’ Reply, ECF No. [8].
        3
            Unless otherwise indicated, all section references are to Title 20 of the United States
Code.

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       Except as provided in subsection (k)(4), 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, 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.

§ 1415(j). Known as the “stay-put provision,” this section mandates that once a parent files a

due process complaint, “the child shall remain in the interim alternative educational setting

pending the decision of the hearing officer . . . unless the parent and the State or local

educational agency agree otherwise.” § 1415(k)(4); accord 34 C.F.R. § 300.518(a).

       B.        Factual Background

       M.J. is a twelve year old student currently in the sixth grade. Pls.’ Ex. 1 (Compreh.

Psych. Eval.), at 1. In the third grade, M.J. was diagnosed with a learning disorder and began to

receive special education services. Id. at 3. Prior to entering middle school, M.J.’s IEP

identified his primary disability as “specific learning disability” and dictated that M.J. should

receive five hours per week of specialized instruction outside the general education setting in

each of the following academic areas: reading, written expression, and mathematics. Pls.’ Ex. 3

(1/23/12 Hearing Officer Determination (“HOD”)), at 3. The IEP further provided that M.J.

should receive 30 minutes of specialized instruction outside the general education setting each in

the following areas: behavioral support services and occupational therapy. Id. Finally, the IEP

required M.J. to receive the support of a dedicated aide and access to “Other Classroom Aids,”

such as access to a computer, open book examinations, modified projects to fit M.J.’s attention

threshold. Id.

       Before entering middle school, M.J. underwent another comprehensive psychological

evaluation, which diagnosed M.J. with Attention-Deficit/Hyperactivity Disorder, Combined

                                                  3
Type, and classified as having a learning disorder, not otherwise specified. Pls.’ Ex. 1, at 12.

For the 2011-2012 school year, M.J. enrolled in Deal Middle School (“Deal”), his neighborhood

middle school. Pls.’ Ex. 3, at 4. In the fall of 2011, the District convened several meetings to

revise M.J.’s IEP. Id. at 4-5. Among other changes, the District decided to reduce M.J.’s hours

of specialized instruction by half. Id. at 5. M.J.’s parent filed a due process complaint, arguing

that M.J.’s October 31, 2011 IEP denied M.J. a free appropriate public education. Pls.’ Ex. 2

(11/9/11 Due Process Compl.).

       In ruling on the initial due process complaint, 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. Pls.’ Ex. 3, at 5.

The Hearing Officer denied the parent’s request that M.J. receive “full-time out of general

education specialized instruction,” and instead found that the full fifteen hours of specialized

instruction previously required by M.J.’s IEP was sufficient to provide M.J. with a free

appropriate public education. Id. at 8. Finally, the Hearing Officer denied the parent’s request

that M.J. be placed in a separate day school, but explicitly 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.],”

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.” Id. at 8-9 (emphasis added).

       In light of the Hearing Officer Determination (“HOD”), the parties convened to establish

a new IEP for M.J. Pls.’ Ex. 4 (2/1/12 IEP). In accordance with the HOD, the District

designated a new school for M.J. to attend, MacFarland Middle School (“MacFarland”). Pls.’


                                                  4
Ex. 5 (2/6/12 Due Process Compl.), at 5. Plaintiffs allege they asked for an opportunity to visit

the school before consenting to M.J. attending MacFarland. Id. 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. Id. 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. Id. at 7. 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. Pls.’ Ex. 6 (2/9/12 Mot. to Invoke “Stay Put”), at

4. 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.” Pls.’ Ex. 10 (2/16/12 Hearing Officer Order), at 3. 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. Compl., ECF No.

[1], at 7.

                                    II. LEGAL STANDARD

        “The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). When considering a motion for summary judgment, the court may not make

credibility determinations or weigh the evidence; the evidence must be analyzed in the light most

favorable to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “The stay put provision has been interpreted as

imposing an automatic statutory injunction, like the automatic stay in bankruptcy.” Casey K. ex


                                                 5
rel. Norman K. v. St. Anne Cmty High Sch. Dist., 400 F.3d 508, 511 (7th Cir.2005) (citations

omitted). Once a due process complaint has been filed, a parent can invoke the stay-put

provision when the school district proposes a change in the child’s “then-current educational

placement.” § 1415(j). 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.” Bd. of

Educ. of Cmty High Sch. Dist. No. 218, Cook Cnty., Ill. v. Ill. State Bd. of Educ., 103 F.3d 545,

548 (7th Cir. 1996). The parent seeking the stay-put injunction “must identify, at a minimum, a

fundamental change in, or elimination of a basic element of the education program in order for

the change to qualify as a change in educational placement.” Lunceford v. D.C. Bd. of Educ.,

745 F.2d 1577, 1582 (D.C. Cir. 1984). In the event the school district cannot provide the child

with his or her then-current educational placement, the school district has an “obligation to

provide a ‘similar’ placement, on an interim basis.” Knight ex rel. Knight v. District of

Columbia, 877 F.2d 1025, 1029 (D.C. Cir. 1989).

                                       III. DISCUSSION

       In order to determine whether Plaintiff is entitled to a stay-put injunction instructing the

District to return M.J. to Deal, the Court must answer two questions: (1) what was M.J.’s “then-

current educational placement” at the time the second due process complaint was filed?; and (2)

has the District proposed a “fundamental change” in M.J.’s educational program? The Court

finds that M.J.’s current educational placement at the time his parent filed the second due

process complaint was the February 2012 IEP, with services to be provided at MacFarland

Middle School. Accordingly, the District has not proposed a “fundamental change” in M.J.’s


                                                 6
educational placement, and Plaintiff’s request for a stay-put injunction must be denied.

       Not surprisingly, the parties fundamentally disagree as to what was M.J.’s educational

placement at the time his parent filed the second due process complaint (February 6, 2012).

Plaintiffs contend that Deal should be considered M.J.’s “then-current educational placement”

because despite the HOD, the District “has yet to propose a placement that both parties agree can

implement [M.J.’s] IEP.” Pls.’ Mot. at 10. The fundamental flaw in Plaintiffs’ argument is the

underlying assumption that M.J.’s “educational placement” is the physical school he attends. Ill.

State Bd. of Educ., 103 F.3d at 548. Typically, “[t]he dispositive factor in deciding a child’s

‘current educational placement’ should be the [IEP] . . . actually functioning when the ‘stay put’

is invoked.” Drinker ex rel. Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d Cir. 1996)

(citations omitted); accord Mackey v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d

158, 163-64 (2d Cir. 2004); Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir.

1990). Thus the underlying question in this case is what IEP governed services for M.J. when

his parent initiated the pending administrative proceedings.

       Although Plaintiffs do not directly address the issue in their pleadings, there is no

indication in the record that Plaintiffs objected to the February 2012 IEP itself. Plaintiffs did not

challenge the substance of the February 2012 IEP in the second due process complaint. See Pls.’

Ex. 5. Moreover, the HOD finding functions as an “agreement” for purposes of the stay-put

provision between the parties as to the level of services M.J. should receive. See 34 C.F.R. §

300.518(d); accord Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ., 471 U.S. 359,

373 (1985); Mackey, 386 F.3d at 163 (noting once the hearing officer issued a decision, “there

was an agreement changing [the student’s] pendency placement”). Thus, as of February 6, 2012,


                                                  7
the operative IEP was the February 1, 2012 IEP, which incorporated the findings of the HOD.

As the last agreed upon IEP, the February 2012 IEP is M.J.’s “then-current educational

placement” for purposes of the stay-put provision.

       Although the case law on this issue is sparse, at least two other courts in this District

have adopted the same standard employed by this Court. In Laster v. District of Columbia, 394

F. Supp. 2d 60 (D.D.C. 2005), Judge Ricardo M. Urbina found that “[b]ecause [the student’s]

guardian did not consent to the 2005-2006 IEP, [the student’s] current educational placement is

the 2004-2005 IEP.” Id. at 65. Judge Urbina rejected the District’s contention that placing the

student at his prior school was impossible due to age restrictions, and granted the guardian’s

request for a stay-put injunction, ordering the District to place the student in a location providing

services equivalent to the student’s last agreed upon IEP. Id. at 65-66. Likewise in Spilsbury v.

District of Columbia, 307 F. Supp. 2d 22 (D.D.C. 2004), Judge Emmet G. Sullivan held that the

IEP in place for the students prior to the challenged IEP controlled what services the students

were required to receive (and thus what services the District had to fund) during the pendency of

the students’ challenge to the revised IEP. Id. at 25-26.

       Plaintiffs’ motion relies entirely on Spilsbury for the proposition that Deal should be

considered M.J.’s “then-current educational placement.” There are important factual differences

that Plaintiffs overlook. In Spilsbury, the plaintiffs challenged the revised IEP the District

sought to implement, thus the prior IEP controlled what services the students would receive, and

where they would attend school. 307 F. Supp. 2d at 65-66. The question in Spilsbury was what

IEP the District had to follow while the plaintiffs’ due process complaint was pending. Id. at 25

(“DCPS refused to fund these services, arguing that the 2001–02 IEPs-the challenged


                                                  8
IEPs-dictate the students' placements and required educational services.”). Here, the parties

agreed to M.J.’s February 2012 IEP. The dispute is to whether or not MacFarland can provide

those services. Judge Sullivan faced an entirely different question in Spilsbury. Plaintiffs

provided no statutory or legal support for their contention that when the parties disagree as to a

physical location for services, an IEP previously rejected by a Hearing Officer should govern the

child’s services until the administrative proceedings are complete.

       Plaintiffs repeatedly contend that “the current educational placement cannot be the

placement that is being challenged by the Plaintiffs.” Pls.’ Reply at 5. The Court agrees, but the

conclusion Plaintiffs reach from this contention is based on the flawed premise that M.J.’s

physical placement and “educational placement” are synonymous. Plaintiffs are correct insofar

as the District could not seek to employ an IEP that the Plaintiffs were challenging in

administrative proceedings. E.g., Laster, 394 F. Supp. 2d at 65. However, Plaintiffs are not

challenging the IEP itself, just the adequacy of the location where M.J. is to receive services

under the IEP. Since 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.

       Having established that the February 2012 IEP is M.J.’s “then-current educational

placement,” the next question is what physical location should provide those services. The

Plaintiffs do not dispute that pursuant to the February 2012 IEP, the District designated

MacFarland as the location where M.J. would receive the services outlined in the IEP. Although

Plaintiffs vehemently argue that MacFarland cannot provide the services required by the IEP, the

adequacy of the placement is a question for the Hearing Officer to address in resolving the


                                                  9
second due process complaint, a fact Plaintiffs readily admit in their Reply. Pls.’ Reply at 4

(“[T]he question of whether a particular placement is appropriate is a different question than

what the then current educational placement is.”). Contrary to Plaintiff’s assertion, Deal cannot

be the designated location because the HOD explicitly found that Deal cannot provide the

services incorporated into the February 2012 IEP. Accordingly, unless and until the Hearing

Officer agrees with Plaintiffs’ pending complaint, MacFarland is a proper physical location for

M.J. to receive the services required by his IEP.4

       The final question before the Court is whether, given M.J.’s educational placement, the

District has proposed a “fundamental change” to M.J.’s placement. § 1415. Based on the record

before the Court, the answer is no. The District proposes keeping M.J. at the same physical

location with the same IEP that was in place when M.J.’s parent filed the pending due process

complaint. Def.’s Opp’n at 6-7. Since the District has not proposed any change to M.J.’s

educational placement, much less a “fundamental change,” Plaintiffs have no basis on which to

invoke the stay-put provision. Lunceford, 745 F.2d at 1582 .

       The Court is not unsympathetic to Plaintiffs’ concern that repeatedly moving M.J.

throughout the school year is problematic for M.J.’s educational development. But the Court

would be remiss not to note that it runs contrary to the purposes of the IDEA and to M.J.’s

interests in achieving educational progress for M.J. to not attend school, or to require M.J. to

attend a school his parent fought to and succeeded in having ruled inadequate to provide


       4
          Consistent with § 1415(j), the District is free to change M.J.’s physical placement so
long as the new placement does not amount to a fundamental departure from M.J.’s February
2012 IEP. Knight ex rel. Knight, 877 F.2d at 1029. The Court simply refers to MacFarland as
the proper physical placement because the District has not expressed any intent to revise M.J.’s
physical placement.

                                                 10
necessary services. The stay-put provision certainly was not designed to keep a child in a school

that the parties agree cannot provide the necessary services pending a Hearing Officer

Determination as to a proper physical placement. Even if the Hearing Officer ultimately

determines MacFarland cannot comply with M.J.’s IEP, at this point in time, MacFarland is

M.J.’s current educational placement and the stay-put provision does not apply.

       Since the stay-put provision is inapplicable to M.J., as a matter of law the District is

entitled to summary judgment on Plaintiffs’ claim. However, because the District did not cross-

move for summary judgment, the Court can do no more than deny Plaintiffs’ motion at this time.

Therefore, the Court will require Plaintiffs to show cause, on or before March 23, 2012, as to

why the Court should not grant summary judgment in Defendant’s favor based on the Court’s

decision today. See Fed. R. Civ. P. 56(f)(1) (“After giving notice and a reasonable time to

respond, the court may . . . grant summary judgment for a nonmovant.”). This is not an

invitation to re-litigate the arguments set forth in Plaintiffs’ Reply and rejected by the Court, but

Plaintiffs are entitled to an opportunity to respond since Defendants did not move for summary

judgment.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court finds Plaintiffs are not entitled to a stay-put

injunction pursuant to the IDEA. For purposes of the stay-put provision, M.J.’s “then-current

educational placement” is the IEP agreed to by the parties on February 1, 2012. Pursuant to the

IEP, the District elected to place M.J. at MacFarland Middle School. This Court is not in a

position to review the adequacy of that placement. Because the District has not proposed

revising the IEP, the stay-put provision is inapplicable to this case. Therefore, Plaintiffs’ [6]


                                                 11
Motion for Summary Judgment is DENIED.

      An appropriate Order accompanies this Memorandum Opinion.

Date: March 16, 2012

                                                 /s/
                                              COLLEEN KOLLAR-KOTELLY
                                              UNITED STATES DISTRICT JUDGE




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