United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
L. BRASHER UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Enterprise City
Board of Education's Motion for Reconsideration, (Doc.
18), and Defendants S.S. and J.S.'s Motion to Strike
Conditional Affidavit of Joylee Cain, (Doc. 21). Upon
consideration, the Board's motion is DENIED, and the
parents' motion is DENIED as moot.
case is an appeal from the determination of an Alabama State
Board of Education hearing officer under the Individuals with
Disabilities Education Act (IDEA). That hearing officer found
that federal law required the Board to take certain actions
for the benefit of a disabled child, S.S.. The parties filed
cross- motions addressed to the issue of whether the Board
should comply with the hearing officer's order during the
pendency of this appeal.
Court denied the Board's motion to stay and granted
S.S.'s motion to compel. See Doc. 17. The Court
did so because the state hearing officer had expressly
ordered the Board to comply “immediately” and
because Alabama Code §41-22-20(c) expressly provides
that the filing of a notice of appeal does not stay a state
agency's action. See Doc. 17. To that end, the
Court ordered the Board to complete and implement the
following findings by January 1, 2020, (Doc. 14):
. Finding 4: “That the LEA is directed
to provide mileage reimbursement to Petitioner's parents
for the mileage incurred at the U.S. Federal mileage
. Finding 6: “That the LEA is directed
to provide S.S. with a BIP [Behavior Intervention Plan], and
a BCBA [Board Certified Behavior Analyst], immediately, to
work with his team to address these concerns;”
. Finding 7: “That the LEA is directed
to provide S.S. a one-on-one Behavioral Aide and a counselor,
immediately . . . .” (Doc. 6-1 at 37).
the Court issued its order, the Board asked for
reconsideration. (Doc. 18).
Board's motion to reconsider the Court's previous
ruling is due to be denied. Because of the exigent
circumstances surrounding the minor child at the center of
this case, the Court did not write a memorandum opinion in
relation to its initial order. Accordingly, the Court will
use this opportunity to do so now.
The IDEA requires the Board to implement the hearing
officer's decision pending this appeal.
Board's position that the hearing officer's order
should be stayed pending appeal is inconsistent with plain
text of the IDEA, 20 U.S.C. §§1400 et
seq.. The IDEA includes a “stay put”
provision governing the placement of a child during an
appeal. Escambia Cty Bd. of Educ. v. Benton, 358
F.Supp.2d 1112, 1122 (S.D. Ala. 2005). Under this provision,
“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 ….” 20 U.S.C.
§1415(j) (emphasis added). The U.S. Secretary of
Education has required that this provision be applied as
follows: “If the decision of a hearing officer in a due
process hearing conducted by the SEA or a State review
official in an administrative appeal agrees with the
child's parents that a change of placement is
appropriate, that placement must be treated as an
agreement between the State or local agency and the
parents for purposes of [§1415(j)].” 34
C.F.R. §300.518; see also Ala. Admin.
Code §290-8-9-.08(9)(c)(14) (same language). This
regulation implements a U.S. Supreme Court opinion based on
the statute's plain language. See Sch. Comm.
of Town of Burlington, Mass. v. Dep't of Educ. of
Mass., 471 U.S. 359, 372 (1985) (holding that a state
administrative appeal board's “decision in favor of
the [parents] and the Carroll School placement would seem to
constitute agreement by the State to the change of
placement', as used in the IDEA, means educational
program-not the particular institution where that program is
implemented.” Whiteex re. White v.
Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.
2003); seealso R.L v. Miami-Dade County School
Bd., 757 F.3d 1173, 1190 n.8 (11th Cir. 2014) (quoting
White with approval). As used in the IDEA, the
actual setting, or physical location, is only one part of
“placement.” R.L. v. Miami-Dade Cty Sch.
Bd., 2008 WL 3833414, at *29 (S.D. Fla. Aug. 12, 2008)
(“[A] particular school setting and location where
instruction is given is an aspect of placement.”)