1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) TABITHA LOFTON, ) Parent and Next Friend to T.C., a minor, ) ) Plaintiff s , ) ) v. ) Civil Action No . 1 3

- 1959 (RBW) ) DISTRICT OF COLUMBIA, ) ) Defendant

. )

____________________________________ )

MEMORANDUM OPINION Plaintiffs Tabitha Lofton, on her b ehalf and on behalf of her minor son T.C., seek a
temp orary restraining order and preliminary injunction compelling the District of Columbia ( “ District ” ) to reinstate T.C.’ s enrollment at T he Ivymount S chool (“Ivymount”) in Rockville, Maryland, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C . §§
1400

- 1482 (201 2 )

. In the memorandum in support of their motion, the plaintiffs allege that “ [o] n May 21, 2013, District of Columbia Public Schools (“DCPS”) unilaterally and without the consent or meaningful participation of Plaintiff Tabitha Lofton, determined to remove Ms. Lofton’s son, T.C., from his educational placement at the Ivymount School (“Ivymount”), a private, entirely special education school in Rockville, Maryland, in violation of the [IDEA]

. ” Memorandum in Support of Plaintiffs’ Applica tion for Temporary Restraining Order and Preliminary Injunction (“Pls.’ Mem.”) at 1. According to the plaintiffs, this decision “ has placed
T.C. into [Dunbar High School ] . . . where he has been subject to physical harm, his safety is threatened on a daily basis, and he cannot poss ibly achieve educational success.” Id. at 2. The2 plaintiffs assert that because “there is a significant likelihood that [the p]laintiff [s] will succeed on the merits of her claims; Ms. L ofton and T.C. have suffered, and will continue to suffer, irreparable harm if T.C. is forced to continue attending Dunbar; and the balance of harms and public interest favor [the p]laintiffs,” id. , the Court should issue a temporary restraining order and preliminary injunction requiring “ DCPS to pay for T.C. to attend . . . Ivymount . . . until . . .
T.C. ’ s IEP Team is reconvened and properly determin es to remove T.C. from Ivymount. ” Complaint for Declaratory and Injunctive Relief ( “ Compl. ” ) ¶ 1.
T he Court conducted a hearing on the motion on December 11, and December 16, 2013. During the hearing the Dist rict asserted that Dunbar High School (“Dunbar”) was T.C.’s current educational placement and t hat , pursuant to the s tay put provision of the IDEA , T.C. should be required to continue attending Dunbar until the issue o f T.C. ’ s placement is permanently
resolved. Def. ’ s Opp ’ n at 7

- 8 ; s ee 20 U.S.C. § 1415(j) (“ [ D ] uring the pendency of [administrative due process hearings under § 1415], the child shall remain in the then

- current educational placement of the child

. ”) Since this Circuit has determined that a “child is entitled to an injunction only outside the stay

- put provision . . . by establishing the usual grounds for such relief,” Anderson v. Anderson , 877 F.2d 1018, 1 024 (D.C. Cir. 1989), after careful consideration
of the parties’ motions 1 as well as evidence presented during the December 11 and 16, 2013

1 The Court considered the following documents in rendering its decision: (1) the Plaintiffs’ Complaint for Declaratory and Injunctive Relief (“Comp l .”); (2) the Hearing Officer’s Determination s of October 30, 2013 ( “ HOD ” ) ; (3) the Plaintiffs’ Application for Temporary Restraining Order and Preliminary Injunction; (4) the Defendant’s Opposition to Plaintiffs’ Motion for a Temporary Restraining Order (“Def.’s Opp ’ n ”) ; (5) the Plaintiff’s Motion to File A mended Complaint; and (6) the Novembe r 27, 2013 Settlement Agreement

.3 hearing s , 2 the Court concludes the T.C. meets the “usual grounds” for a temporary restraining order and preliminary injunction. Accordingly, f or the following reasons , the D C PS is ordered

to pay for T.C.’s attendance at and transportation to and from Ivymount until s uch time that a properly developed Individual Education Plan (“ IEP ”) i s developed for T .C. − on e that includes Ms. Lofton’s meaningful participation − addressing t he services T.C. is entitled to receive and a
location where all of those services can be provided.
STANDARD OF REVIEW Temporary restraining orders a nd preliminary injunctions are “ extraordinary remed[ies] that should be granted only when the party seeking the relief, by a clear showing, ca rries the
burden of persuasion.” Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006) (internal quotation and citation omitted). In determining whether to issue a temporary restraining order, the Court must apply the same standard that is applie d to preliminary injunctions, see, e.g. , Hall v. Daschle , 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009), which require s that “‘ [a] plaintiff seeking a preliminary injunction must establish [1] that [he or she ] is likely to suc ceed on the merits, [2] that [he or s he ] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [his or her ] favor, and [4] that an injunction is in the public interest.’” Sherley v. Sebelius , 644 F.3d 388, 392 (D.C. Cir. 2011) (qu oting Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008)) (some
alterati ons in original). Because they are “ extraordinary remed[ies] ,” temporary restraining
orders and preliminary injunction s “should be granted only when the party seeking th e relief, by

2 The Court considered (1) the December 16, 2013 testimony of Tabitha Lofton; (2) the December 16 , 2013 testimony of T.C.; and ( 3 ) the December 16, 2013 testim ony of Dr. Davis

.4 a clear showing, carries the burden of persuasion.” Cobell v. Norton , 391 F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. Armstrong , 520 U.S. 968, 972 (1997)).
The Di s trict of Columbia Circuit has applied a “sliding scale” approach in eval uating the temporary restraining order/ preliminary injunction factors. Sherley , 644 F.3d at 392. Under this analysis, [i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing o n another factor. For example, if the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non

- movant, then a correspondingly lower standard can be applied for likelihood of success . . . Alternatively, if substan tial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors must be balanced against each other.
Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1291

– 92 (D.C. Cir. 2009) (internal quotation marks and citations omitted). 3
Thus, t he Court must assess the merit s of the plaintiff s ’ request for a temporary restraining order and prelim inary injunction as to each of the factors delineated above . As set forth more fully below, the Court concludes that a balancing of these factors weighs in favor of granting the relief requested by the plaintiff s
.

3 Sever al members of the Circ uit have read the Supreme Court ’ s decision in Winter to cast doubt on the continued validity of the sliding scale approach. See Davis , 571 F.3d at 1296 (Kavanaugh, J, joined by Henderson, J., concurri ng) (“[U]nder the Supreme Court ’ s precedents, a movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm, among other things” (emphasis in original)); Sherley , 644 F.3d at 393 (“Like our colleagues, we read Winter at l east to suggest if not to hold ‘that a likelihood of success is an independent, free

- standing requirement for a preliminary injunction .’” (quoting Davis , 571 F.3d at 1296 (concurring opinion))). But the Circuit has had no occasion to decide this question because it has not yet encountered a post

- Winter case where a preliminary injunction motion survived the less rigorous sliding scale analysis. See Sherley , 644 F.3d at 393 (“We need not wade into this circuit split today because, as in Davis , as (continued . . .)5 STATUTORY FRAMEWORK Under the IDEA, states and territories, including the District of Columbia, that accept federal educational funds must provide a free appropriate public education (“FAPE”) to students with disabilities residing within their borders. See 20 U.S.C. § 1412(a)(1)(A). The IDEA
def ines a FAP E as an education which “[(A)] is provided at public expense, under public supervision and direction, and without charge; (B) meet[s] the standards of the State educational agency; (C) include[s] an appropriate preschool, elementary school, or se condary school education in the State involved; and (D) [is] provided in conformity with the individualized education program required” under other provisions of the IDEA. Id. § 1401(9). Once a student is deemed eligible to receive services under the IDE A, a team which includes the parent or parents of the student, certain teachers, and a representative of the local educational agency develops an IEP for the student in accordance with the requirements of the IDEA. Id. §§ 1414(d)(1)(A), (B). In addition to developing the IEP, the student’s team determines an appropriate educational placement for the student. See id. § 1414(e). The IDEA provides that a parent may s ubmit an administrative complaint to an educational agency “with respect to any matter relating to the i dentification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” and receive a hearing on the complaint conducted by an independent hearing officer. Id. §§ 1415(b)(6), (f). A party w ho is dissatisfied with the decision of the hearing officer may then file a civil action in federal district court seeking review of the hearing officer’s decision. Id. § 1415(i)(2)(A). If the hearing officer or district court determines that the agency faile d to provide

(. . . continued) detailed below, in this case a preliminary injunction is not appropriate even under the less demanding sliding

- scale analysis.”). Thus, because it remain s the law of this Circuit, the C ourt must employ the sliding scale analysis here

.6 the student with a FAPE, the officer or court may require the agency to reimburse the parents of the child for the cost of enrollment at a private institution. Id. § 1412(a)(10)(C)(ii).
BACKGROUND The facts pertinent to this case are as foll ows. 4 T.C. is a seventeen

- year
- old resident of the District of Columbia who receives special education services under the IDEA. Pls.’ Mem. at
2 ; Def. ’s Opp ’ n at 2. T.C.’s November 2012 annual IEP mandated that he be provided twenty

seven and one half ho urs per week of specialized instruction outside of the general education environment, thirty minutes per week of occupational therapy outside of the general education environment, sixty minutes per week of speech

- language pathology outside of the general

e ducation environment, and sixty minutes per week of behavioral support services outside of the general education environment. H OD ¶ 56 . From September 2004 until December 3, 2013, T.C.
was enrolled in Ivymount , a nonpublic special education day school, pursuant to his previous
IEP s
. 5 Id. ¶ ¶ 3, 5 . T.C.’s previous IEPs listed a “separate day school” as T.C.’s educational placement and Ivymount was deemed an appropriate location where those services could b e provided

. Pls.’ Mem. at 3. On May 21, 2013, T.C.’s mother, teachers, service providers, and a DCPS representative
met to determine T.C.’s 2013

- 2014 IEP. HOD ¶ 51. During that meeting, DCPS i dentified T.C.
as a student who can receive service s r equired by the IDEA in a DCPS school during the 2013

- 2014 school year. Id. ¶ 66. All members of T.C.’ s IEP T eam, in cluding T.C.’s mother, protested this change in T.C.’s IEP , i d. ¶ ¶ 62

- 65, and DCPS noted the IEP Team members’ disagreement

4 Several of the subtle poin ts were developed during witness testimony presented during the December 16, 2013 hearing.

5 T.C. was permitted to remain at Ivymount during Ms. Lofton ’ s administrative appeal of the 2013

- 2014 IEP. As the 2013

- 2014 IEP was not completed u ntil November, the Cou rt infers that T.C. was being provided services at Ivymount and remained there in a ccordance with the 2012

- 2013 IEP.7 wit h the change in placement, i d. ¶ 68. Nonetheless, o n June 27, 2013 , DCPS sent Ms. Lofton a letter informing her that T.C. would b e assigned to D unbar for the 2013

- 2014 school year. Id

. ¶
71

. Ms. Lofton filed an administrative complaint on Aug ust 16, 2013 , alleging that DCPS denied T.C. a FAPE by “significantly imped[ing] her opportunity to participate in the decision

making process.” Id. at 1. An administrative hearing on her complaint was held on October 11 and 22, 2013. Pls.’ Mem. at 5. During the hearing, Ms. Lofton and various other members of T.C.’s May 21, 2013 IEP Team testified that DCPS had predetermined to remove T.C. from his placement at a separate day school, and that regardless of what any of them said at the meeting,
DCPS did not and would not meaningfully consider their opinions or factor them into the placement decision. Id. On October 30, 2013, the hearing officer found that DCPS had violated the IDEA by denying Ms. Lofton the opportunity to meaningfully participate in T .C.’s educational placement
decisions and that the denial equated to a denial of T.C.’s right to a FAPE. HOD at 10

- 12. After finding that T.C. was denied a FAPE as a result of this omission , the hearing officer substituted her own findings to augment T.C .’s IEP and ordered that T.C. be transitioned to Dunbar. Id. at 24; Pls.’ Mem. at 7. On December 3, 2013, T.C. began attending Dunbar. Pls.’ Mem. at 7. T.C. testified that
d ur ing his time at Dunbar, he has been repeatedly bullied and threatened. Id. ; December 16,
2013 Test imony of T.C. ( “ T.C. ’ s Testimony ” ). T.C. also testified that h e was physically assaulted in the hallway on one of those occasions by another student who demanded that he give
the ass a ilant some money. T.C

. ’ s Testimony. Dr. Courtney Davis, Dunbar ’ s Special Education Coordinator, testified that p rior to T.C.’s arrival at Dunbar, the professional responsible for8 providing occupational th erapy resigned and has not yet been replaced

. December 16, 2013
T estimony of Dr. Davis. Thus, t o date, T.C. has not been provided occupational therapy at
Dunbar. Id. Dr. Davis also acknowledges that she is uncertain whether T.C. has been included in authorizations to receive occup ational therapy from an outside provider. Id. Moreover, D r. Davis stated that she is also unable to ascertain when these services will be provided to T.C. Id. Six days after T.C.’s first day at Dunbar, Ms. Lofton filed her judicial complaint , and a motion requesting a temporary restrain ing order and preliminary i njunction due to what has occurred during T.C. ’ s tenure at Dunbar

. Compl. at 1. As noted earlier, the hearing on the
motion w as held b y this Court on December 11 and 16, 2013.
LEGAL ANALYSIS
A. Likelihood of Success on the Merits The primary tool for ensuring that the student is provid ed a FAPE is the child ’ s IEP. See Honig v. Doe , 484 U.S. 305, 311 (1988) (“[t]he primary vehicle” and “centerpiece of the statute’s education delivery system” is the IEP). “Once the IEP is developed, the school system must provide an appropriate placement that m eets those needs and, if an appropriate public placement is unavailable , the school system must provide an appropriate private placement or
make available educational

- related services provided by private organizations to supplement a public placement.” Pe tties v. District of Columbia , 238 F. Supp. 2d 114, 116 (D.D.C. 2002) (citing 20 U.S.C. § 1412(a)(10); 34 C.F.R. §§ 300.349, 300.400

- 402 (2012) ). In order to provide a student with a FAPE, the student’s education must be “provided in conformity with the IEP”
deve loped for him, and therefore, the educational agency must place the student in a setting that is capable of fulfilling the student’s IEP. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.116 (2012) (providing that the child’s educational placement “ [i]s based on the child’s IEP”).9 The plaintiffs’ motion and supporting memorandum combined with evidence presented

on the December 16, 2013 hearing date indicate that DCPS is presently violating T.C.’s right to a FAPE by placing him at Dunbar. Aside from the fact that the hearing officer concluded that
DCPS violated T.C.’s right to a FAPE by preventing his mother from meaningfully participating in the development of his IEP, 6 it is critical to note that, in this case, T.C.’s IEP cannot currently be implemented at Dunbar

. Specifical ly, T.C.’s 2013

- 2014 IEP requires that he be provided 30

m inutes of occupational therapy per week, and Dr. Davis testified that the school is currently
unable to provide occupational therapy services

. As noted earlier, d uring her December 16, 2013 testimony , Dr. Davis indicated that p rior to T.C.’s enrollment at Dunbar, the professional responsible for providing occupational therapy at Dunbar resigned. A t the present time, T.C. is not receiving services that DCPS is required to provide in conformi ty with the IEP. Although DCPS has received permission to send students to

ou tside providers to receive occupational therapy , Dr. Davis could not definitively recall if T.C.
had been included in the list of students authorized to receive these services. Furthermore, she

6 In addition to e nsuring th at a student is properly placed, the IDEA mandates that the parent be allowed to meaningfully participate in the development of his or her child’s I EP. See 34 C.F.R. § 300.116(a)(1) (2012) (“The placement decision is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. ” ) Absent an uncooperative pare nt, meaningful participation is the cornerstone of the IEP process. See J.N. v. District of Columbia , 677 F. Supp. 2d 314, 320 (D.D.C. 2010) (“The IDEA guarantees parents of disabled children the opportunity to participate in the evaluation and placement process
. ”) Ms. Lofton’s inability to meaningfully participate in the May 2013 IEP therefore calls into question the validity of T.C.’s current IEP. See Spilsbury v. District of Columbia , 307 F. Supp. 2d 22, 25

- 26 (finding that because the parents did not agree wit h the changes made to their child ’ s revised IEP, the prior IEP controlled what services the stud ent would receive and where he would attend school until the challenged IEP could be evalua ted and, if necessary, revised). D espite recognizing this deficienc y, instea d of referring the matter back to the IEP team for further evaluation of its deci sion, the Hearing Officer substituted her judgment for that of the IEP Team as to what effect the omission had on the validity of the May 2013 IEP

. T he Court ’ s inability to substitute its own views for those of the IEP Team w hen confronted with a defective IEP raises serious questions about the propriety of the Hearing Officer ’ s decision to unilaterally implement changes in a student’s IEP without r emanding the matter to the IEP Team. See D.S. v. Bayonne Bd. of Educ. , 602 F.3d 553, 564

- 65 (3rd. Cir. 2010) (“[A] court should determine the appropriateness of an IEP as of the time it was made, and should use evidence acquired subsequently to the creation of an IEP only to evaluate t he reasonableness of the school district’s decisions at the time they were made.”); R.E. v. New York City Dept. of Ed. , 694 F.3d 167, 186 (2d Cir. 2012) (ruling that the (continued . . .)10 could not provide a timeframe for when students (and in particular T.C.) would begin receiving services from outside providers. While the Court appreciates Dr. Davis’s candor, this uncertainty is not acceptable. Thus, s ince the services mandated in T.C. ’s IEP ca nnot be provided at Dunbar, the Court finds that T.C. and his mother will lik ely succeed on the merits of
their case.
B. Irreparable Harm “A failure to provide a FAPE constitutes irreparable injury.” Massey v. District of
Columbia , 400 F. Supp. 2d 66, 75 (D.D.C. 2005)

. T.C. has a finite amount of time to receive
educational services. Every week that T.C. is not receiving his occupational services is another week that T.C.’s educational progress is delayed and, DCPS cannot retroactively cure the harm caused by those missed weeks of required service

. With regard to this second factor, the Court finds that that T.C.’s present and continued inability to receive occupational therapy will c ause
T.C. irreparable harm

. C. Harm to the Defendants and Other Parties With regard to this third factor, the Court does not find that the issuance of a temporary restraining order and preliminary injunction in this matter will cause substantial injury to the
Distric t. The temporary restraining order and preliminary injunction are narrowly tailored to
ensure that the ir duration w ill remai n in force only until such time that a properly developed IEP is adopted and a location is selected that can provide all required services T.C. is entitled to receive pursuant to that IEP. Furthermore, b y removing T.C. from Dunbar, the Court is facilitating DCPS’s adherence to the IDEA. The Court therefore concludes that the District ’s

(. . . continued) IDEA does not allow a school district to “rehabilitate a deficient IEP after the fact” by showing that a child “would, in practice, have received the missing services,” at the public placement).11 compliance with the IDEA is not a harm, but rather is in its best interest, which also weighs in favor of issuing the requested relief

. D. Public Interest
As to the final factor of the temporary r estraining order /preliminary injunction analysis, it
is evident from th e record now before the Court that the public i nterest will be fur thered by granting the requested relief . “The public interest lies in the proper enforcement of . . . the IDEA and in securing the due process rights of special education students and their parents provided by statute,” and this public interest “out weigh [s] any asserted financial harm to DCPS.” Petties , 238 F. Supp. 2d at 124 (granting preliminary injunctive relief).
E. Balancing the Temporary Restraining Order Factors In analyzing the four factors discussed above, the Court is persuaded that the plaintiffs
h ave d emonstrated that they are entitled to the injunctive relief requested . The two most

s ignificant factors in this case to the Court ’ s decision

– the plaintiffs’ likelihood of success on the merits and the threat of irreparable harm

– we igh heavily in favor of the plaintiffs. Th e Court finds, moreover, that it would be serving the public interest of the IDEA by granting the requested relief , and that doing so will not subject the defendant to any har m . In sum, the Court’s analysis of th e various considerations in deciding whether to grant the requested relief leads to the conclusion that the plaintiffs’ motion for a temporary restraining order and preliminary injunction must be granted. 7

7 Federal Rule of Civil Procedure 65(c) authorizes the issuance of a temporary restraining order “ only if the movant gives security in the amount t hat the court considers proper to pay the costs and damages sustained by any party found to have been wro ngfully enjoined or restrained.” The District of Columbia Circuit has interpreted thi s rule to authorize this Court “ to [both] set the amount of secur ity [and] to dispense with any security requirement whatsoever where the restraint will do the defendant no material damage. ” Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n , 636 F.2d 755, 759 (D.C. Cir. 1980) (internal quotation marks omitted). As noted above, the Court finds that the temporary restraining order here wil l not cause the defendants any “material damage.” The Court, therefore, will not require the plaintiffs to post any security before this Order takes effect.12 CONCLUSION For the foregoing reasons, the Court grants the plaintiffs ’ motion for a temporary restraining order and a preliminary injunction

. 8
SO ORDERED this 20th day of December, 2013.
REGGIE B. WALTON United States District Judge

8 The Court will contemporaneously issue an Order consistent with the Memorandum Opinion.