292 F. Supp. 3d 300
D.C. Cir.2018Background
- Z.B., a 13-year-old student on the autism spectrum, was attending Kingsbury Day School (a nonpublic school) under an IEP requiring specialized instruction and related services (speech, OT, PT, behavioral supports).
- DCPS proposed transferring Z.B.'s location of services to another nonpublic school, Kennedy Krieger, which was accepted and would provide comparable therapies, a slightly different bell schedule (30 vs. 32 hours/week) and an 11-month year instead of 10 months.
- Plaintiff (Z.B.'s mother) filed a due process complaint and then this suit seeking a stay-put preliminary injunction under the IDEA to keep Z.B. at Kingsbury at public expense while the dispute is litigated.
- The administrative hearing officer found Kennedy Krieger could implement Z.B.'s IEP and characterized the differences as a change in service location, not a change in educational placement.
- The district court reviewed the record and denied the stay-put motion, holding DCPS’s proposed move did not constitute a "fundamental change" in Z.B.'s then-current educational placement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the move to Kennedy Krieger triggers IDEA "stay-put" protection | The move changes routine, increases travel, shortens daily hours and alters summer schedule enough to be a fundamental change | The schools provide the same core services required by the IEP; differences are scheduling/location variations, not a placement change | Denied — not a fundamental change; stay-put does not apply |
| Whether physical school location alone defines "educational placement" | Kingsbury as the placement; changing schools equals change in placement | Educational placement is more than a physical building; compare services and IEP fulfillment | Held for defendant: placement is defined by services and program, not just the building |
| Whether differences in bell schedule and specialized-instruction hours are material | Shorter weekly hours and different scheduling at Kennedy Krieger deviate from IEP and threaten services | Hour differences reflect a longer school year and do not prevent implementation of IEP services | Held for defendant: scheduling differences are minor and not fundamental |
| Whether increased travel and transition difficulty justify stay-put | Greater distance and Z.B.'s sensitivity to routine constitute a fundamental change | Increased commute and transition challenges are not so substantial to alter educational placement | Held for defendant: transportation/transition issues are not sufficient to trigger stay-put |
Key Cases Cited
- Leonard v. McKenzie, 869 F.2d 1558 (D.C. Cir. 1989) (describes the IEP as the "modus operandi" of the IDEA)
- Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (U.S. 1982) (IEP must be reasonably calculated to enable progress)
- Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005) (district must fund private placement if no suitable public school exists)
- Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577 (D.C. Cir. 1984) (stay-put requires at least a fundamental change in basic elements of the program)
- D.K. ex rel. Klein v. D.C., 962 F. Supp. 2d 227 (D.D.C. 2013) (physical school alone does not define educational placement for stay-put analysis)
- DeLeon v. Susquehanna Cmty. Sch. Dist., 747 F.2d 149 (3d Cir. 1984) (minor changes in transportation routine generally do not justify stay-put)