LOUDOUN COUNTY SCHOOL BOARD v. BUNKUA (2023)

ORDER

This matter is before the Court on Theerayut Bunkua and Heidi Bunkua's (together, “Defendants”) Motion for stay-put placement at Katherine Thomas School (“KTS”) (Dkt. 13) on behalf of their minor child, K.B., pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and Defendants’ Motion for leave to amend their reply in support of the stay-put motion (Dkt. 20). Defendants’ stay-put motion seeks an order:

(i) that KTS is K.B.’s stay-put placement during the pendency of this proceeding;

(ii) that Loudoun County Public Schools (“LCPS”) assume the cost of K.B.’s attendance at KTS, including that LCPS take on principal payment of K.B.’s tuition at KTS and the cost of a 1:1 aide for K.B. at KTS; and

(iii) that LCPS develop and present an Individualized Education Program (“IEP”) that identifies KTS as K.B.’s educational placement. Plaintiff Loudoun County School Board (“LCSB”) opposes Defendants’ motion for stay-put placement but does not oppose the motion to amend. Because the motions have been fully briefed and oral argument has been waived, the motions are now ripe for disposition. For the reasons that follow, Defendants’ motion for stay-put placement must be granted in part and denied in part, and Defendants’ motion to amend must be denied as moot.

I.

The facts relevant to this motion can be summarized as follows:

• K.B. is a ten-year-old minor child eligible for special education and related services under the IDEA under the categories of Autism, Speech or Language Impairment, and Other Health Impairment due to a diagnosis of attention-deficit/hyperactivity disorder (“ADHD”) and sensory processing disorder. Compl. ¶ 20; Hearing Officer's Decision at 5–6 (hereinafter, the “Decision”) (Dkt. 17).

• K.B. attended LCPS from the start of the 2017 school year through March 2020, primarily through the K–2 Autism Program located at Little River Elementary School. Compl. ¶ 22.

• In March 2020, due to the COVID-19 pandemic, public schools in the Commonwealth of Virginia were closed for in-person instruction. When schools reopened, Defendants elected to have K.B. remain in a virtual education program for the summer of 2020 and 2020–2021 academic year. Compl. ¶¶ 27–29.

• On August 16, 2021, Defendants informed LCSB that Defendants intended to withdraw K.B. from LCPS and enroll him at public expense at KTS, a private school for students with disabilities. K.B. has been enrolled at KTS since the start of the 2021–22 academic school year. Compl. ¶42–44.

• On August 22, 2022, Defendants initiated a due process proceeding. After a four-day hearing, the Hearing Officer determined that KTS was K.B.’s least restrictive placement. Compl. ¶¶ 51, 53, 82; Decision at 54–55.

• The Hearing Officer's decision directed that Defendants be (i) reimbursed for enrollment at KTS and (ii) reimbursed for all private evaluations of K.B. that Defendants obtained in support of their position at the hearing. Decision at 61–62.

Following the Hearing Officer's decision, LCSB filed this action on March 9, 2023, challenging the Hearing Officer's findings and seeking to reverse and vacate the decision. On September 22, 2023, Defendants filed a motion for stay-put placement at KTS (Dkt. 10), and they renewed that motion on October 4, 2023 (Dkt. 13).¹

II.

The IDEA requires States, in return for federal funding, to ensure that every child with a disability has the opportunity to achieve a “free appropriate public education,” also known as a “FAPE.” T.B., Jr. ex rel. T.B., Sr. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566, 571 (4th Cir. 2018) (quoting 20 U.S.C. § 1412(a)). A FAPE refers to “special education and related services” that are “(1) without charge, (2) meet the standards of the state educational agency, (3) include the appropriate level of education in the state involved and (4) are provided in conformity with an individualized education program (‘IEP’).” K.I. v. Durham Pub. Schs. Bd. of Educ., 54 F.4th 779, 785 (4th Cir. 2022); see also 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. The IEP is prepared by a team of teachers, school officials, and the student's parents, and serves as the “primary vehicle for ensuring the student receives a FAPE.” Durham Pub. Schs., 54 F.4th at 785. To satisfy the IDEA, the school must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017).

The IDEA “anticipates that parents and educators will not always agree,” and for this reason, the statute contains several procedural mechanisms for parents and educators to resolve their disputes. Bouabid v. Charlotte-Mecklenburg Schs. Bd. of Educ., 62 F.4th 851, 856 (4th Cir. 2023). These procedures “guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think are inappropriate.” Honig v. Doe, 484 U.S. 305, 311–12 (1988). Parents may request “an impartial due process hearing” before a State or local educational agency. 20 U.S.C. § 1415(f)(1)(A). If a party to the hearing disagrees with the outcome of the proceeding, they may then sue in federal court to challenge the “findings and decision” of the hearing officer. Id. § 1415(i)(2)(A).

A final decision on an IEP “will in most instances come a year or more after the school term covered by that IEP has passed.” Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 370 (1985). Given this, the IDEA specifies that, while an administrative or judicial challenge proceeds, “the child shall remain in the then-current educational placement of such child.” 20 U.S.C. § 1415(j). The “stay-put” provision of § 1415(j) thus “guarantees an injunction that prohibits a school board from removing the child from his or her current placement during the pendency of the proceeding.” Wagner v. Bd. of Educ. of Montgomery Cnty., 335 F.3d 297, 301 (4th Cir. 2003). A stay-put injunction “is automatic,” and thus because “the party seeking [the stay-put injunction] need not meet the usual requirements for obtaining preliminary injunctive relief,” a district court must “simply determine the child's then-current educational placement and enter an order maintaining the child in that placement.” Id.

The IDEA also authorizes a district court to grant any other “such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). But in this regard, further injunctive relief “is by no means automatic.” Wagner, 335 F.3d at 301. Rather the movant “bears the burden of demonstrating entitlement to such relief under the standards generally governing requests for preliminary injunctive relief.” Id. at 302. A preliminary injunction is an extraordinary and drastic remedy. Munaf v. Geren, 553 U.S. 674, 689–90 (2008). A party seeking preliminary injunctive relief must show: (i) likelihood of success on the merits; (ii) irreparable harm in the absence of preliminary relief; (iii) that the balance of the equities tips in the party's favor; and (iv) that the public interest favors an injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). All four factors must be satisfied by the movant. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), adhered to in relevant part, 607 F.3d 355 (4th Cir. 2010) (per curiam).

With these governing principles in mind, analysis appropriately proceeds to Defendants’ motions.

III.

Defendants seek an order (i) that KTS is K.B.’s stay-put placement during the pendency of this proceeding; (ii) that LCPS assume the cost of K.B.’s attendance at KTS, including that LCPS take on principal payment of K.B.’s tuition at KTS and the cost of a 1:1 aide for K.B. at KTS; and (iii) that LCPS develop and present an IEP that identifies KTS as K.B.’s educational placement.

To begin with, it is clear from the record that KTS is K.B.’s stay-put placement. The stay-put provision of the IDEA is intended to ensure that the status quo is maintained during the pendency of administrative and judicial proceedings. There is no dispute that K.B. has continuously attended KTS since 2021 and that the Hearing Officer found that KTS is K.B.’s least restrictive environment. KTS is thus K.B.’s “current education placement” for purposes of 20 U.S.C. § 1415 and its implementing regulation, 34 C.F.R. § 300.518 (requiring that “during the pendency of any ․ judicial proceeding ․ the child involved in the complaint must remain in his or her current educational placement.”). Moreover, Section 1415(j)’s “stay-put” provision applies “unless the State or local education agency and the parents otherwise agree.” 20 U.S.C. § 1415(j). Where, as here, there is a favorable administrative ruling for the parents, that ruling constitutes an agreement between the State and the parents under § 1415(j). See Burlington, 471 U.S. at 372; 34 C.F.R. § 300.518(d). Given that K.B. has been continuously enrolled at KTS since 2021, and because the Hearing Officer found in favor of K.B.’s parents, Defendants must be granted an order directing that K.B. remain at KTS until final judgment in this case. See Wagner, 335 F.3d at 301.

Defendants claim in their motion that they are also entitled to an order directing that LCPS bear the cost of K.B.’s continued placement at KTS—including the cost of tuition and of a 1:1 aide for K.B. at KTS—and that LCPS assume principal payment of those costs. The Hearing Officer's decision directed that Defendants be “reimburse[d] for enrollment at KTS.” Decision at 61–62. Notwithstanding the plain command for reimbursement, Defendants insist that the decision requires LCPS to assume primary payee status based on a “plain reading of the intent of” the Hearing Officer and considering the decision “from a practical perspective.” Br. at 7 (Dkt. 14). Defendants’ arguments are unavailing. Consideration of the Hearing Officer's decision “is guided first and foremost by the words of the” order. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196 (2002). To reimburse means to pay an individual back. In the context of the decision, the order clearly contemplates Defendants first paying K.B.’s cost of enrollment at KTS and then later receiving compensation by Plaintiff for the cost. Because the Decision “is plain and unambiguous” it must be enforced “according to its terms.” Carcieri v. Salazar, 555 U.S. 379, 387 (2009); Carr v. United States, 560 U.S. 438, 458 (2010) (internal quotations omitted). Moreover, reimbursement is a standard remedy in IDEA proceedings.² LCSB indicates that is already reimbursing Defendants for the costs of K.B.’s tuition at KTS during the pendency of this matter. See Resp. Br. at 5 (Dkt. 16). That is what the Hearing Officer ordered. Defendants are entitled to this and no more.

Yet Defendants also request that LCPS cover the cost of a 1:1 aide for K.B. at KTS. LCSB asserts that the cost of this aide exceeds the total cost of KTS’ tuition and is beyond the scope of the program contemplated by the Hearing Officer. See Resp. Br. at 7 (Dkt. 16). The Hearing Officer's decision did not find that a 1:1 aide is necessary for K.B. to receive a FAPE, nor was such an aide a component of the program considered during the hearing. Indeed, the KTS program in which K.B. was enrolled at the time of the administrative proceeding had “a two-to-one ratio of professionals to student[s].” Decision at 45. Defendants initially claimed that a 1:1 aide was part of K.B.’s IEP at the time of the due process hearing, but the record does not support this claim, and Defendants have since moved to amend their pleadings to remove this assertion. See Motion for Leave to Amend at 1 (Dkt. 20). Although Defendants agree that this was a “factual error,” Defendants have not otherwise abandoned their demand for LCSB to assume the costs of a 1:1 aide. However, such costs were not part of the Hearing Officer's decision and exceed the scope of relief contemplated by the stay-put provision of 20 U.S.C. § 1415(j). For this relief, therefore, Defendants must prove that they are entitled to a preliminary injunction under § 1415(i)(2)(C)(iii). Yet Defendants never allege or argue that their request for preliminary injunctive relief meets the requirements of a preliminary injunction as set forth in Winter, namely, (i) likelihood of success on the merits, (ii) irreparable harm, (iii) the balance of the equities, or (iv) the public interest. Winter, 555 U.S. at 20. Defendants have therefore failed to demonstrate entitlement to an injunction requiring LCPS to assume the costs of a 1:1 aide.

Similarly, Defendants’ request for an order directing LCPS to develop and present an IEP that identifies KTS as K.B.’s educational placement must also be denied. That relief was not ordered by the Hearing Officer and Defendants have not satisfied the requirements of Winter entitling them to this preliminary injunctive relief.³

In sum, Defendants are plainly entitled to a stay-put injunction ensuring that K.B. remain at KTS during the pendency of this litigation, but Defendants are not entitled at this time to a preliminary injunction requiring LCPS to pay KTS’ tuition directly, to pay for a 1:1 aide, or to develop an IEP identifying KTS as K.B.’s educational placement because those remedies are not part of the Hearing Officer's order.

Accordingly,

It is hereby ORDERED that Defendants’ Motion (Dkt. 13) is GRANTED IN PART and DENIED IN PART. The motion is granted insofar as KTS is identified as K.B.’s stay-put placement during the pendency of this litigation. The motion is denied in all other respects.

It is further ORDERED that Defendants’ Motion for Leave to Amend (Dkt. 20) is hereby DENIED as moot.

FOOTNOTES

1.   Defendants’ first motion contained multiple pleadings and was filed without a notice of hearing date in violation of the local rules.

2.   See M.S. ex rel. Simchick v. Fairfax Cnty. Sch. Bd., 553 F.3d 315, 323 (4th Cir. 2009) (the “IDEA provides for parental reimbursement for private placements”) (citing Burlington, 471 U.S. at 369); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15–16 (1993) (directing courts that find an IDEA violation to provide relief that “consider[s] all relevant factors, including the appropriate and reasonable level of reimbursement” and warning that “[t]otal reimbursement [may] not be appropriate.”).

3.   Defendants’ cross-appeal only requests reasonable attorneys’ fees and costs. Defendants did not argue that they are entitled to any remedies beyond those ordered by the Hearing Officer. It is unnecessary at this time to address or decide whether Defendants have waived their claims for additional relief.

T. S. Ellis, III, United States District Judge