UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 15-27 (CKK)

MEMORANDUM OPINION (January 14, 2015) Plaintiffs Joseph Brown and Jennifer Brown f iled suit as the parents and next friends of their minor daughter, G.B., against the District of Columbia (“th e District”). G.B. has been identified as eligible for special education and related services pursuant to the Individuals with Disabilities Education Im provement Act (“IDEA”), 1 20 U.S.C. § 1400 et seq . This suit invokes the IDEA’s “stay-put” provision and seeks to force the District to fund G.B.’s placement in a non-public educational program while the challe nge to G.B.’s December 8, 2014, Individualized Education Program (“IEP”) is under review by an administrative hearing of ficer. Concurrently with the Complaint, Plaintiffs filed a Motion for a Temporary Restraining Order (“TRO”) and a Motion for Preliminary Injunction. During a te lephonic conference call with the Court, the parties agreed to a briefing sche dule for Plaintiffs’ TRO reques t. Minute Order (Jan. 8, 2015).

1 The IDEA was re-authorized and re-codi fied 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 I ndividuals with Disabilities Education Act. See Pub. L. No. 108–446, § 101; 118 St at. at 2647; 20 U.S.C. § 1400 (2006). Accordingly, the Court refers to the amended Act herein as the IDEA.

G.B. et al. , Plaintiffs,

v. DISTRICT OF COLUMBIA, Defendant.2 Plaintiffs’ Motion for a TRO is now fully briefed. 2 After considering the parties’ briefs, the accompanying exhibits, and the applicable authorities, the Court finds that Plaintiffs are entitled to a “stay-put” injunction. Accordingly, Plaint iffs’ Motion for Temporary Restraining Order is GRANTED. As the grounds for Plaintiffs’ reques t for a Preliminary Inj unction are identical to the grounds for Plaintiffs’ TRO request, the Court also GRANTS Plaintiffs’ Motion for Preliminary Injunction, ECF No. [3], during the pendency of the administrative challenge.
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 [“FAPE”] th at emphasizes special education and related services designed to meet their unique need s and prepare them for further education, employment, and independent livi ng.” 20 U.S.C. § 1400(d)(1)(A). Once a child is identified as disabled, the school district with in which the child resides must convene a meeting of a multidisciplinary team to develop an individualized education program (“IEP”) for the student. See § 1414. “The IEP is in brief a comprehensive stat ement of the educational needs of a handicapped child and the specially designed instruction and re lated services to be employed to meet those needs.” Leonard v. McKenzie, 869 F.2d 1558, 1560 n.1 (D.C. Cir. 1989) (quoting Sch. Comm. of the Town of Burlington v. Dept. of Educ., 471 U.S. 359, 368 (1985)). As such, it represents the

“ modus operandi ” of the IDEA. Id. The IEP must be formulated in accordance with the terms of the IDEA and “should be reason ably calculated to enable th e child to achieve passing marks

2 Plaintiffs’ Motion for a Temporary Restra ining Order (“Pls.’ TRO”), ECF No. [2]; Defendant’s Opposition to Plaintiffs’ Motion for a Temporary Restraining Order (“Def.’s Opp’n”), ECF No. [7]; Plain tiffs’ Reply to Opposition to Mo tion for Temporary Restraining Order (“Pls.’ Reply”), ECF No. [8].3 and advance from grade to grade.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 204 (1982). Once the IEP is deve loped, the school sy stem must provide an appropriate educational placement that comports with the IEP. Alston v. District of Columbia, 439 F.Supp.2d 86, 90 (D.D.C. 2006). “If no su itable public school is available, the school system must pay the costs of sending th e child to an appropria te private school.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and internal editing omitted). If the parent of a child receivi ng 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., 20 U.S.C. § 1415(b)(7)(A). The IDEA further provides that 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 cons ent of the parents, be pl aced in the public school program until all such proceedings have been completed. Id. § 1415(j). Known as the “stay-pu t 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.” Id. § 1415(k)(4); accord 34 C.F.R. § 300.518(a). The purpose of this provision is to prohibit “school officials from re moving a child from the regular public school classroom over the parents’ objection pending completion of the review proceedings.” Honig v. Doe, 484 U.S. 305, 327 (1988).
B. Factual Background The following facts are not disputed by the parties. G.B. is a thirteen year-old resident of4 the District of Columbia who has been identified as a student with disabil ities who is entitled to receive special educat ion and related servic es. Compl. ¶¶ 68, 69, 72. On October 16, 2013, the District developed an IEP designe d to provide G.B. with thirty- one hours of special education instruction outside of the genera l education setting and one hour of behavior al support services outside of the general ed ucation setting for a total of thirty-t wo hours of services. Def.’s Opp’n at 1; Compl. ¶ 73. On December 13, 2013, the Dist rict reconvened the IEP team and developed another IEP that again provided for thirty-one hours of special education instruction and one hour of behavioral support services outside of the general educati on setting. Def.’s Opp’n at 1; Compl. ¶ 74. Both IEPs “anticipated that [G.B.] would receive her services at a [District of Columbia Public Schools (“DCPS”)] school that had a fully separate special education setting, including separate entrance and lunchroom for special education students.” Def.’s Opp’n at 1. The District identified the location for the pr ovision of services as Hart Middle School (“Hart”) and G.B. was placed at Hart. Id. at 2; Compl. ¶ 76. However, Hart could only provide G.B. twenty-seven and a half hours of services per school week because it does not have a fully separate special education setting. Id. In April 2014, G.B. was raped by two non-disabled students while transitioning to her bus at Hart. Compl. ¶ 78; Pls.’ TRO at 3, 8; Pls.’ Ex. 4 (Children’s Hospital Medical Reco rds). On December 8, 2014, the Di strict reviewed and revised G.B.’s IEP to provide for twenty-seven and a ha lf hours of specialized instruction and related services. Def.’s Opp’n at 2; Compl. ¶¶ 97, 101. The District id entified Cardozo High School as the location for provision of G.B.’s IEP services. Def.’s Opp’n at 2; Compl. ¶ 102. “Due to the structure of Cardozo, G.B. would normally have transitions and lunch with nondisabled peers.” Def.’s Opp’n at 2. On December 31, 2014, Plaintiffs filed an ad ministrative due process complaint before5 the District’s Office of the State Superintende nt of Education Office of Dispute Resolution challenging, among other things, the December 8, 2014, IEP, and placement at Cardozo High School. Def.’s Opp’n at 2; Compl. ¶¶ 112-13. Th e administrative hearing officer’s decision is due by March 16, 2015. Def.’s Opp’n at 1 (citing 34 C.F.R. § 300.515). On January 8, 2015, Plaintiffs filed the present action invoking the ID EA’s “stay-put provision” and requested that the District fund G.B.’s placement in a separate non-public special education school while their due process complaint is adjudicated.
II. DISCUSSION Since the “stay-put provision” imposes an au tomatic statutory inj unction, the traditional four-part test for an injunction does not apply. D.K. ex rel. Klein v. District of Columbia , 962 F.Supp.2d 227, 232 (D.D.C. 2013); Alston , 439 F.Supp.2d at 91-92. Instead, the Court must answer two questions to determin e whether Plaintiffs are entitled to a stay-put injunction: (1) what was G.B.’s “then-current educational placement” at the time the due process complaint was filed?; and (2) has the District proposed a “fundamental change” in G.B.’s educational program? Johnson v. District of Columbia , 839 F.Supp.2d 176, 177 (D.D.C. 2012); see Laster v. District of Columbia, 394 F.Supp.2d 60, 64 (D.D.C. 2005) (citing Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984)) (A court ma y grant a stay put injunction if the school system proposes “a fundamental change i n, or elimination of, a basic element of the [then-current education placement].”). A. G.B.’s “Then-Current Educational Placement” Typically, “[t]he dispositive factor in decidi ng a child’s ‘current educational placement’ should be the [IEP] . . . actually functio ning when the ‘stay put’ is invoked.” Johnson , 839 F.Supp.2d at 177 (quoting Drinker ex rel. Drinker v. Colonial Sch. Dist. , 78 F.3d 859, 867 (3d6 Cir. 1996)). However, when a plaintiff has challenged the student’s educational placement in place at the time the “stay-put provision” is invoked, courts traditionally treat the IEP in place prior to the challenged IEP as the controlling IEP for purposes of the “stay-put provision.” See
Laster , 394 F.Supp.2d at 65 (finding th e student’s then-current edu cational placement to be the 2004-2005 IEP because the student’s guardian did not consent to the 2005-2006 IEP); Spilsbury v. District of Columbia , 307 F.Supp.2d 22, 25-26 (D.D.C. 2004) (holding that the IEP in place for the students prior to the challenged IEP contro lled what services the students were required to receive during the pendency of the students’ challenge to the revised IEP). Here, the parties do not disput e that G.B.’s December 13, 2013, IEP is the “then-current educational placement” for purposes of the “stay-put provision.” See Pls.’ TRO at 8; Def.’s Opp’n at 2. The December 2013 IE P provided for thirty-one hour s per week of specialized instruction “in an out of general education setting.” Pls.’ Ex. 3 (Dec. 2013 IEP), at 11. It also provided for two hundred and forty minutes per mont h of Behavioral Support Services “in an out of general education setting.” Id. Behavioral Support Services we re to “include counseling, behavior management and consultation with teache r and parent to ensure that interventions are consistently implemente d in the school setting.” Id. at 9. 3 As Defendant explains, “it was anticipated that the student woul d receive her services at a DCPS school that had a fully separate special education setting, including separate entrance and lunchroom for special education

3 The Court has placed G.B.’s IEPs under seal along with all of the exhibits Plaintiffs filed in this case because they contain sensitive identifying information about G.B. and her disability. The Court has directly quoted la nguage from G.B.’s December 2013 IEP which is under seal. However, the quoted language contains only a generi c description of the services G.B. was to receive pursuant to the IEP and is akin to the information openly discussed by the parties in their briefing about the number of hours of services and types of services set forth in G.B.’s IEPs. Accordingly, the Court finds there is no reason to redact the language from G.B.’s December 2013 IEP that the Court has included in this Memorandum Opinion.7 students.” Def.’s Opp’n at 1. The December 2013 IEP did not require that G.B. receive the support of a dedicated aide. Pls.’ Ex. 3 (Dec. 2013 IEP), at 10. Having identified G.B.’s “then-current educ ational placement,” the Court must now evaluate whether the District has proposed a fundamental change in G.B.’s educational placement such that G.B. is entitled to be pl aced in her “then-curren t educational placement” pending the resolution of Plaintiffs’ challenge to this proposed change.
B. Fundamental Change At the outset, the Court notes that in respons e to Plaintiffs’ Motion for a TRO, Defendant proposed several modifications to G.B.’s chal lenged December 2014 IEP in order “[t]o comply with the maintenance of placement provision.” De f.’s Opp’n at 2-3. Specifically, Defendant proposed that G.B. “enjoy her lunch in a separate setting, which DCPS will provide, that will be separate from the general education population and monitored by appropria te school personnel.” Id. at 3. Defendant also proposed that it “pr ovide G.B. with a dedi cated aide who will accompany her in her transitions betw een special education classes.” Id. Accordingly, the change that Defendant is ultimately proposing in G.B.’s educational placement consists of a reduction from a total of thirty-two hours of specialized instruction and related services in a fully separate special education setting to twenty-seven and a half hours of sp ecialized instruction and related services with lunch in a setting separa te from the general education population and monitored by school personnel, and a dedicated aide to accompany G.B. in her transitions between special education classe s. Defendant argues that th is newly proposed educational placement “will not be a fundamental deviation from the December 13, 2013 IEP” as “the only de minimis difference [are] transitions among nondisabled peers with a dedicated aide.” Id. (emphasis in original).8 To be entitled to a “stay-put” in junction, Plaintiffs must identi fy a “change in the ‘general educational program in which a child . . . is enro lled, rather than mere variations in the program itself.’ ” Lunceford v. Dist. of Columbia Bd. of Educ. , 745 F.2d 1577, 1582 (D.C. Cir. 1984) (quoting Concerned Parents v. New York City Board of Education, 629 F.2d 751 (2d Cir. 1980)); see also id. (“[A]ppellee must identify, at a minimum, a fundamental change in, or elimination of a basic element of the education program in or der for the change to qualify as a change in educational placement.”). Based on this standa rd, the Court agrees with Plaintiffs that Defendant’s proposed change in educationa l placement—even with the recently proposed modifications—constitutes a “fundamental ch ange” from the December 2013 IEP—G.B.’s “then-current educa tional placement.” G.B.’s December 2013 IEP contemplated thirty-one hours of special education instruction and one hour of behavioral s upport services in a fully separate special education setting . Defendant’s proposed educational placemen t for G.B. contemplates (1) twenty-seven and a half hours of specialized instruction and related services, (2) G.B.’s exposure to her nondisabled peers, and (3) lunch segregated from her peers and under adult supervision. The Court finds that these three change s represent a fundamental alte ration to G.B.’s educational placement. First, under Defendant’s proposed educationa l placement, G.B. will receive four and a half fewer hours of services per week because G.B. will not receive services during lunch or transition periods as contemplated in her De cember 2013 IEP. Defenda nt appears to propose that this gap in services can be filled by providing G.B. a dedicated aide to accompany her during transition periods and “appropriate sch ool personnel” to monitor her during lunch. However, Defendant offers no ex planation as to how these modifications match the services9 provided for in G.B.’s December 2013 IEP; speci fically, whether the dedicated aide or school monitor would provide the behavioral su pport services that the December 2013 IEP contemplated G.B. would rece ive during these periods. The Court finds that neither the dedicated aide nor the school monitor is an ad equate substitute for the services that the December 2013 IEP contemplated G.B. would r eceive. As presented by Defendant, the dedicated aide is intended to simply “accompany” G.B. during her transitions amongst her nondisabled peers throughout the school day and the school monitor is intended to simply “monitor” G.B. during lunch. See Def.’s Opp’n at 3. Moreove r, it appears that neither individual can provide the level of services required by G.B.’s December 2013 IEP because the IDEA does not permit paraprofessionals to provide specialized instruction or related services without the supervision of a special education teacher. See Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg. 46612 (Aug. 14, 2006) (the IDEA “shoul d not be construed to perm it or encourage the use of paraprofessionals as a replacement for teachers or related services providers who meet State qualification standards . . . these aides provide sp ecial education and related services to children with disabilities only under the supervision of special edu cation and related services personnel.”). Indeed, G.B.’s December 2013 IEP, wh ich contemplated a total of thirty-two hours of services entirely outside of the general educa tion setting, specifically stated that a dedicated aide was not required, strongly s uggesting that a dedicated aide is not an individual capable of providing the services G.B. re quires during transition and l unch periods. Accordingly, the presence of a dedicated aide or school monitor during transitions and lunch is not a substitute for the “counseling and behavior management [instructi on G.B. is to receive] when interacting with her peers” during transitions and lunch per G.B. ’s December 2013 IEP. Pls.’ Reply at 4-5.10 Defendant’s proposed educational placement repres ents a substantial reduction in services.In addition, the District’s proposed educational placement would expose G.B. to her nondisabled peers during transitions in the sc hool day. The December 2013 IEP, by contrast, purposefully contemplates that G.B. would receive her services in a fully separate setting for disabled students. See Johnson v. District of Columbia , 962 F.Supp.2d 263, 269 (D.D.C. 2013) (crediting testimony by a DCPS employee that “when individuals create IE Ps that are 32 hours, what they are actually trying to do is ensure that [the disabled students] do not engage with their non-disabled peers during non-instructional time[,] which include[s] lunch and transition.”). The Court finds Defendant’s attempt to remedy this di fference by assigning G.B. a dedicated aide to accompany her during transitions amongs t non-disabled students unavailing. A fundamental aspect of G.B.’s December 2013 IEP was the requirement that all of G.B.’s services be provided to her outside of the general education setting to “prevent G.B. from being exposed to her nondisabled peers at any point in tim e during the day.” Pl.’s Reply at 8. Even with a dedicated aide to accompany her, G.B. will still be exposed to her non-disabled peers. And, as previously discussed, the dedicated aide will not be able to provide G.B. with the requisite services to help G.B. navigate that exposure during these transition periods. 4 Finally, beyond resulting in a reduction of serv ices, the Court finds Defendant’s proposal that G.B. spend lunch “separate from the general education popula tion and monitored by appropriate school personnel” doe s not bring Defendant’s proposed educational placement closer

4 Plaintiffs also argue that assigning G.B. a dedicated aide to accompany her during her transitions amongst the general education population does not ame liorate her exposure to that population because G.B. had been assigned a dedica ted aide at Hart the day she was raped by two non-disabled students while transitioning to the bus. See Pls.’ TRO at 8; Pls.’ Ex. 13 at 3. However, it is unclear to the Court from the part ies’ briefs whether the dedicated aide at Hart was assigned to accompany G.B. during her transitions at Hart.11 to G.B.’s December 2013 IEP, but instead makes the proposed placement more restrictive. While G.B.’s December 2013 IEP requires that she be separated from her non-disabled peers at lunch, it does not bar her from enjoying lunch w ith her disabled peers. Defendant’s proposed educational placement would appear to require G.B. to eat lunch alone without any of her peers because, “[d]ue to the structure of Cardozo,” di sabled students “normally” eat lunch with their nondisabled peers in the general educa tion setting. Def.’s Opp’n at 2.
In Lunceford , the Court of Appeals for the District of Columbia Circuit found that “a move from a ‘mainstream’ program to one c onsisting only of handicapped students would constitute a change in educational placement; a m ove from one mainstream program to another, with the elimination of a theate r arts class, would not be such a change.” 745 F.2d at 1582. Here, the Court finds that the four and a half hour per week reduction in important specialized instruction and behavioral s upport services, the exposure to nondisabled students during transition periods throughout the day, and the segregated lunch se tting represent far more than mere programmatic variations in G.B.’s educational placement. Even with Defendant’s recently proposed modifications to the challenged December 2014 IEP, the District is seeking to place G.B. in a more mainstream setting than is cl early contemplated by G.B.’s December 2013 IEP— her “then-current educational placement.” A ccordingly, the Court finds that Defendant’s proposed educational placement represents a fundamental change in the structure of and quantity and quality of services provided by G.B.’s edu cational placement entitling Plaintiffs to a “stayput” injunction.
III. CONCLUSION For the foregoing reasons, the Court shall GRANT Plaintiffs’ Motion for a Temporary Restraining Order. Accordingl y, if none of the DCPS schools can provide thirty-two hours of12 special education and related services as requ ired by G.B.’s December 2013 IEP, as Plaintiff contends, DCPS must provide G.B. with placemen t in a similar program during the pendency of administrative proceedings. Knight v. District of Columbia, 877 F.2d 1025, 1029 (D.C.Cir.1989); McKenzie v. Smith, 771 F.2d 1527, 1533 (D.C. Cir. 1985); Block v. District of Columbia, 748 F.Supp. 891, 898 n.9 (D.D.C.1990). Plain tiffs have suggested two non-public special education schools that appear to meet the requirements of G.B.’s December 2013 IEP: Frost School and Accotink Academy. Pls.’ TRO at 10. The Court will give Defendant the opportunity to file a Notice with the Court by no later than January 16, 2015, indicating whether there is a DCPS school that can accommodate G.B.’s December 2013 IEP or whether G.B. will be placed in a non-public special education school and the date on which G.B. will be placed in a proper educational placement. The Court expects G.B. to be placed in a proper educational placement forthwith as she is presently at home and not receiving any educational benefits. Because Plaintiffs’ Motion for a Preliminary In junction is identical to Plaintiffs’ Motion for a TRO and because a TRO will expire after fourteen days, see Fed. R. Civ. P. 65(b)(2)—long before the administrative hearing officer will have rendered a decision regarding the challenged 2014 IEP—the Court shall also GRANT Plaintiffs ’ Motion for a Preliminary Injunction pending the resolution of the administra tive due process hearing. Nevert heless, the Court shall give Defendant the opportunity to object to the Cour t’s treatment of the Motion for Preliminary Injunction by no later than January 20, 2015, if Defendant believes there is a reason that Plaintiffs’ Motion for a Prelimin ary Injunction should not be tr eated the same as Plaintiffs’ Motion for a TRO.
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//13 An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE