CPS in the 2001 IEP. (Am. Compl. Ex. J-5.) The second due process hearing was conducted over
five days in October and November, 2001. IHO Brimer issued a Decision and Order on December
15, 2001 which upheld the CPS decision to place Peter in a pre-school classroom at Blaine. CPS
requested a clarification of the Decision and Order and on December 27, 2001, IHO Brimer issued
a Clarification of his Decision and Order. (Am. Compl. Ex. L.) On January 28, 2002, plaintiffs
initiated a timely appeal of IHO Brimer’s Decision and Order upholding the CPS decision to place
Peter at Blaine. On March 4, 2001, plaintiffs filed the instant motion before this court for a statutory
injunction and other relief to enjoin CPS and ISBE to maintain and fund Peter’s private schooling
at St. Andrew during the pendency of plaintiffs’ appeal of JHO Brimer’s Decision and Order.
ANALYSIS

I. IDEA “Stay-put” Provision - Automatic Statutory Injunction

The purpose of the IDEA, formerly known as the Education of All Handicapped Children
Act, is to assure “that all children with disabilities have available to them . . . a free appropriate
public education which emphasizes special education and related services designed to meet their
unique needs.” 20 U.S.C. § 1400(c) (Supp.1998) (redesignated as § 1400(d)(1)(A)). For that reason,
school officials and parents meet to discuss and develop an individualized education program
(“IEP”) for the child. “The IEP, which sets forth the child’s educational level, performance, and
goals, is the governing document for all educational decisions concerning the child.” Board of Educ.
of Community High School Dist. No. 218, Cook County, Il. v. Illinois State Bd. of Educ., 103 F.3d
545, 546 (7th Cir.1996). The school district must also attempt to place the disabled child in the
“least restrictive environment,” or, in other words, it must, “to the maximum extent appropriate,”

educate the disabled child among non-disabled children. 20 U.S.C. § 1412(5)(B) (Supp.1998)


appropriateness of the school district’s recommendation could be reviewed, the parties came to a
settlement agreement by which the school district would reimburse the parents for Zvi’s tuition at
the private school for a definite time period and that a review would occur at the end of the time
period with a view toward placing Zvi in an appropriate public program. Id. At the end of this time
period, the school district placed Zvi in a public school program and Zvi’s parent challenged this
placement, maintained Zvi at the private school, and sought to enjoin the Board of Education to fund
Zvi’s private schooling. Id. at 908. The Second Circuit held that Zvi’s parent did not establish that
the private school was Zvi’s “current educational placement” within the meaning of the stay-put
clause. Id. The court found that the stipulation between the parents did not constitute a public
agency placement of Zvi nor did the school district at any time determine that the parent’s private
placement of Zvi was appropriate, and therefore, the school district’s placement at the public school
was the initial placement and appropriate stay-put placement for Zvi. Id. In addition, the court
noted that because the agreement expressly limited the school district’s financial responsibility, the
private school was not the child’s current educational placement within the meaning of the stay-put
provision. Id,

Likewise, in this case, this court finds that although Peter was actually attending St. Andrew
at the time of his 2001 IEP, St. Andrew was not his “then-current educational placement” within the
meaning of the stay-put provision. The inquiry into what Peter’s “then-current educational
placement” is under the stay-put provision is a procedural safeguard to ensure that a school district
continues to finance an educational placement made by the agency before the parent requested a due
process hearing. However, Peter’s attendance at St. Andrew and CPS reimbursement of his tuition

for the 2000-2001 school year was pursuant to the private settlement agreement between the parties.


It is this provision that is the subject of the controversy between the parties in this case.

In the instant motion, plaintiffs seek either an automatic statutory injunction keeping Peter
at St. Andrew School pursuant to the IDEA “stay-put” provision, or in the alternative, a preliminary
injunction to assure Peter remains at St. Andrew pending decision of plaintiffs’ appeal. The first
issue is whether the IDEA “stay-put” provision acts as an “automatic statutory injunction” that
relieves the court from having to engage in the traditional four-part balancing test used for
determining the appropriateness of preliminary injunctions. The Seventh Circuit has not addressed
this issue definitively, but its discussion of the “stay-put” provision in several cases provides a great
deal of guidance. See Board of Educ. No. 218, 103 F.3d at 550 (treating the stay-put order as a

statutory injunction); Rodiriecus L. v. Waukegan School Dist. No. 60, 90 F.3d 249, 254 (7th

Cir.1996) (engaging in the four part balancing test with regard to the stay put order); Board of Educ.
of Oak Park & River Forest High School Dist. 200 v. Illinois State Bd. of Educ., 79 F.3d 654, 657
(7th Cir.1996) (suggesting that the stay put order might qualify as a statutory injunction). In
Rodiriecus, where the court treated the stay put order as a preliminary injunction, it did so because
the child at issue had not been identified as disabled under the IDEA, and imposing an automatic
statutory injunction would allow any expelled child to remain in school pending a hearing. See Board
of Educ. No. 218, 103 F.3d at 550 (discussing Rodiriecus ). Distinguishing Rodiriecus on those facts,
the Seventh Circuit most recently stated in Board of Educ. No. 218, that the “equitable balancing
reserved for preliminary injunctions has no place” where the child at issue had been identified as
disabled and had an IEP. Id. The instant case is analogous to Board of Educ. No, 218 because Peter
has clearly been identified as disabled under IDEA and has had an IEP prepared on his behalf.

Accordingly, this court finds that it would be inappropriate to engage in the four-part balancing


(redesignated as § 1412(5)(A)).

Because the IEP is controlling, the IDEA provides several procedural safeguards to protect
the rights of the child in question. See 20 U.S.C. § 1415(a) (Supp.1998). For example, the IDEA
requires that a school district notify the child’s parents of any proposed changes in the child’s
educational program. 20 U.S.C. § 1415(c) (redesignated as § 1415(b)(3)). If the parents do not agree
with the proposed IEP, they may seek an impartial administrative hearing on the matter, and may
appeal any adverse decision to a state or federal court. 20 U.S.C. § 1415(e)(2) (redesignated as §
1415q@)). The IDEA also mandates that during the pendency of any such hearings conducted
pursuant to the IDEA, the child shall remain in his or her then-current educational placement unless
the State or local educational agency and the parents otherwise agree.! 20 U.S.C. § 1415(e)(3)

(redesignated as § 1514(j)); see also Board of Educ. No. 218, 103 F.3d at 546-47 (7th Cir.1996)

(describing the IDEA safeguards); Susquenita School Dist. v. Raelee S. by and through Heidi S., 96
F.3d 78, 82 (3d Cir.1996) (same). The purpose of this provision, otherwise known as the “stay put”
or “pendent placement” provision, is to ensure that the educational needs of the child continue to be

met while the hearings and any ensuing litigation proceeds. Board of Educ. No. 218, 103 F.3d at 546.

' The full text of 20 U.S.C. § 1415(e)(3) states:

Except as provided in subparagraph (B), 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 such child, or if applying for initial
admission to a public school, shall, with the consent of the parents or guardian, be placed in the
public school program until all such proceedings have been completed.

The relevant Illinois statute provides parallel language: "unless the school district and the parents
or guardian of the student otherwise agree, the student shall remain in his or her present educational
placement..." 105 ILCS 5/14-8.02a(j) (Supp.1997).


tuition for the 2000-2001 school year and that because of this Agreed Order, St. Andrew was the
last agreed-upon placement for Peter and therefore, is the appropriate stay-put provision during the
pendency of this judicial proceeding.

In his Preliminary Decision concluding that Peter’s stay-put placement was Blaine, IHO
Brimer reasoned that when a parent’s complaint involves a child’s initial admission into a school
district, in order to meet its obligation under the stay-put provision, the school district is responsible
for providing the child with a free and appropriate public education (““FAPE”) during the pendency
of judicial proceedings. The school district, therefore, should place the child, with the consent of
the parents, in a public school program until the completion of authorized proceedings. IHO Brimer
concluded, therefore, that the initial placement of the child would constituted the proposed school
district placement. In Peter’s case, Brimer concluded that Peter’s initial placement was Blaine, the
placement proposed by CPS at the July 2001 IEP meeting. Brimer found that the Agreed Order
between Peter’s parents and CPS in which CPS agreed to reimburse Peter’s parents for Peter’s
tuition at St. Andrew for the 2000-2001 school year was not Peter’s initial educational placement.
Upon review of the record and relevant caselaw, this court does not find that Brimer erred in his
determination of the appropriate stay-put placement for Peter during the pendency of this appeal.

As Brimer discussed in his Preliminary Decision, this court also finds the Second Circuit case

of Zvi D. v. Ambach, 694 F.2d 904 (2nd Cir. 1982) instructive. In Zvi D., the parent of Zvi, a child
with minimal brain dysfunction, enrolled Zvi in a private school and requested evaluation by the
school district and board of education to determine Zvi’s eligibility to receive public funding for his
private schooling. Zvi, 694 F.2d at 907. The school district recommended a free appropriate public

education placement for Zvi and his parent contested this initial placement. Id. Before the


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Mail AO 450 form,

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge James F. Holderman than Assigned Judge
CASE NUMBER 02 C 687 DATE 4/29/2002
CASE PETER G. et al vs. CHICAGO PUBLIC SCHOOL DIST. 299
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qa) Qo Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due

(3) a Answer brief to motion due. . Reply to answer brief due.

(4) o Ruling/Hearing on set for at

(5) a Status hearing set for 5/14/2002 at 9:00 A.M..

© a Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) Oo Trial{set for/re-set for] on at

(8) o (BenclyJury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ClGeneral Rule 21 CIFRCP41(a)(1) CFRCP41(a)(2).

(0) «x [Other docket entry] | Pursuant to Memorandum Opinion and Order entered this day, plaintiffs
motion for a statutory injunction, or in the alternative, a preliminary injunction is denied. The parties are
to conduct an FRCP 26(f) conference and file a form 35 by May 9, 2002. Status hearing is set for May
14, 2002 to set a discovery and trial schedule.

(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court,
No notices required. suber of notices

o | Notices mailed by judge's staff.

ov | Notified counsel by telephone.

Docketing to mail notices.

Copy to judge/magistrate judge,

a

docketing depuly initials

4726/2002

date maited notice
courtroom

deputy’s
initials

Js

Date/time received in

YL Sentral Clek?S Office

smaiting deputy initials



CONCLUSION
For all the reasons articulated in this memorandum and order, plaintiffs’ motion for a
statutory injunction, or in the alternative, a preliminary injunction is denied. Counsel are to hold a
conference pursuant to Federal Rule of Civil Procedure 26(f) and jointly file a completed Form 35
on or before May 9, 2001. The case is set for report on status and entry of a scheduling order at

9:00a.m. on May 14, 2001. The parties are urged to discuss a possible settlement of this case.

ENTER:

JAMES F. HOLDERMAN
United States District Judge

DATE: April 29, 2002

11


Peter’s parents placement of Peter at St. Andrew in September 2000 did not constitute a public
agency placement of Peter; the CPS did not review this placement or make any determination as to
the appropriateness of placement at St. Andrew. When deciding ona placement for a child to ensure
that an educational program is tailored to the specific needs of the disabled child, the parents,
teacher, and a representative of the local education agency must collaborate to design and JEP for

the child. Board of Educ. of Community High School Dist. No. 218, Cook County, Ill. v. Illinois

State Bd. of Educ., 103 F.3d 545, 546 (7th Cir.1996). There is no evidence that Peter’s placement

at St. Andrew was a result of any such collaboration. This court finds that the 2001 IEP conference
was, however, such a collaboration and CPS’ placement of Peter at Blaine constitutes initial
educational placement at Blaine.

The purpose of IDEA’s stay-put provision is to ensure the educational needs of a child are
met during the pendency of any proceedings conducted pursuant to the IDEA. _Bd. of Educ. No.
218, 103 F.3d at 546. While this court appreciates Peter’s parents desire to maintain Peter at St.
Andrew where he has been for over a year, Peter’s IEP, which sets forth the Peter’s educational
level, performance, and goals, “is the governing document for all educational decisions concerning
the child,” Id., and in order to ensure that Peter’s needs are met in the interim, this court must look
to the “governing” 2001 IEP. Peter’s parents have the right, as they have exercised, to seek review
of whether Peter’s placement at Blaine is appropriate for Peter’s needs. However, during this review
of Peter’s initial placement, Peter has the right to an education at Blaine funded by CPS, or if his

parents so choose, he may remain at St. Andrew at his parent’s expense.

10


inquiry in this case, and the stay-put order functions as an automatic statutory injunction here. See
also Drinker by Drinker v.. Colonial School Dist., 78 F.3d 859, 864 (3d Cir.1996) (citing Zvi D. by
Shirley D. v. Ambach, 694 F.2d 904, 906 (2d Cir.1982) for the proposition that the stay put order
functions as an (“automatic” injunction). The issue at the crux of this motion, therefore, becomes
which school the applicable “stay-put” placement contemplates Peter will attend during the pendency
of the plaintiffs’ appeal.
Il. “Stay-Put” Placement

The stay-put provision states that “a child shall remain in the then-current education
placement of the child” while any administrative or judicial proceedings are pending, unless the
parents and the school district otherwise agree to change the student’s placement. 20 U.S.C. §
1415); 34 C.F.R. § 300.514. At issue in this motion is what school constitutes Peter’s “then-
current education placement” within the meaning of the stay-put provision. In October, 2001, after
plaintiffs requested a due process hearing to review CPS’ placement of Peter at Blaine Elementary
School, IHO Brimer issued a Preliminary Decision which found Peter’s placement for purposes of
the IDEA “stay-put” provisions to be Blaine Elementary School, the placement proposed by CPS
at Peter’s 2001 IEP meeting. (Am. Compl. Ex. J-5.) Defendants argue it follows that the “then
current educational placement” of Peter was Blaine, and the stay-put placement specified and
ordered by IHO Brimer functions as an automatic statutory injunction and is Peter’s stay-put
placement during the pendency of this litigation. According to plaintiffs, however, IHO Brimer
erroneously decided Peter’s stay-put placement in his Preliminary Decision and the appropriate
“stay-put” placement for Peter is instead St. Andrew. Plaintiffs point to the fact that Peter’s parents

and CPS entered into an Agreed Order whereby CPS agreed to reimburse Peter’s parents for Peter’s


weeks of extended school year, also including related services. The Agreed Order also stated that
an IEP conference would be convened by the end of July 2001 to determine Peter’s placement for
the next year and the related services that would accompany it.

CPS convened an JEP conference on July 23, 2001. The IEP produced that day (“2001 IEP”)
found Peter eligible for special education services, and provided for placement in a regular pre-
school classroom, with supportive services including speech and language services, occupational
therapy and physical therapy provided to be provided in the classroom. The 2001 JEP also noted that
Peter communicates in sign language and the IEP provided for the use of “total communication.”
During the 2001 IEP conference, certain CPS staff reported an intent to place Peter at Brenneman
Elementary school (“Brenneman”), a CPS school. Peter’s parents then initiated a second request for
a due process hearing with respect to Peter’s placement at Brenneman. ISBE appointed independent
hearing officer (“IHO”) Richard Brimer (“Brimer”) to preside over this due process hearing. In
August, 2001, Peter’s parents filed a motion for an interim order determining that Peter’s placement
for purposes of the Individuals with Disabilities Education Act (“IDEA”) “stay-put” provisions to
be St. Andrew School, and further directing that CPS maintain that placement during the pendency
of the appeal. In September 2001, while Peter’s parents’ motion for an interim order was pending,
Peter’s parents re-enrolled Peter at St. Andrew with related supportive services from the Belle Center
at their own expense.

In October, CPS changed its proposed placement for Peter from Brenneman to Blaine
Elementary School (“Blaine”), which is the school that serves the area where Peter resides. Also in
October, IHO Brimer entered a Preliminary Decision (“Preliminary Decision”) which found Peter’s

placement for purposes of the IDEA “stay-put” provisions to be Blaine, the placement proposed by


supportive services from the Belle Center at the expense of defendants during the pendency of the
plaintiffs’ appeal of Mr. Brimer’s administrative decisions. For the following reasons, plaintiffs’
motion for statutory or preliminary injunction is denied.
STATEMENT OF FACTS

Peter is a 4% year old boy who has Downs Syndrome and pervasive developmental disorder
(“PDD”). CPS completed an individualized education program for Peter in July, 2000 (“2000 IEP”)
and found Peter eligible for special education services. The 2000 IEP noted that Peter communicates
in sign language and found Peter eligible for speech and language services, occupational therapy and
physical therapy, and provided placement in a regular pre-school classroom for Peter. While the
2000 IEP conference developed an IEP on behalf of Peter, the record does not indicate that the
2000IEP determined Peter’s placement at a specific school for the 2000-2001 school year. In
September, 2000, Peter’s parents placed Peter at St. Andrew, a private school in Chicago and
arranged for speech and language services, and occupational therapy and physical therapy to be
provided by Belle Center, a private company. Peter’s parents paid for the costs Peter’s tuition at St.
Andrew and related services Peter was receiving from Belle Center.

In December, 2000, Peter’s parents initiated a due process hearing to redress the failure of
CPS to implement Peter’s 2000 IEP by failing to offer Peter an appropriate placement and supportive
services fo the 2000-2001 school year. On the day the due process hearing was scheduled to begin,
the parties reached a settlement agreement. Under the settlement agreement, and as memorialized
in an Agreed Order entered by Hearing Officer Marie Bracki on June 2, 2001 (“Agreed Order”),
(Am. Compl. Ex. C), CPS agreed to reimburse Peter’s parents for tuition and all related services

from Peter’s birthdate until August 2, 2001, including tuition and fees, related services, and six


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PETER G., a Minor and.
GREGORY G. and INEZ G., Individually and
as Parents and Next Friend of Peter G.,

Plaintiffs,
No. 02 C 0687
Vv.

DOCKETED

CHICAGO PUBLIC SCHOOL APR 30 2002

DISTRICT NO. 299 BOARD OF
EDUCATION and ILLINOIS STATE
BOARD OF EDUCATION,

SS SSS SS Se SS Sew

Defendants.
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, District Judge:

On January 28, 2002, plaintiffs Peter G. (“Peter”) and his parents Gregory G. and Inez G.
(collectively, “plaintiffs”) initiated the present proceeding in this court pursuant to 20 U.S.C. §
1415()2) in order to appeal the administrative decisions of Richard Brimer, an independent hearing
officer appointed by the defendant Illinois State Board of Education (““ISBE”). Specifically,
plaintiffs appeal Mr. Brimer’s administrative decisions upholding the defendant Chicago Public
School District No. 299 Board of Education’s (“CPS”) placement of Peter for the 2001-2002 school
year at Blaine Elementary School. On March 4, 2002, plaintiffs filed a motion for a statutory
injunction or in the alternative, a preliminary injunction, seeking an order allowing Peter to continue

attending the private school he is currently attending, St. Andrew School (“St. Andrew”), and receive