Enterprise City Board of Education v. S.S.

          MEMORANDUM OPINION AND ORDER

          ANDREW L. BRASHER UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         This 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.

         The 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 rate[;]”

• 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).

         After the Court issued its order, the Board asked for reconsideration. (Doc. 18).

         DISCUSSION

         The 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. As explained in the court's prior order, the law provides that an Alabama state hearing officer's order goes into effect pending further proceedings. See Ala. Code §41-22-20(c); Columbia v. Masucci, 13 F.Supp.3d 33, 42-44 (D.C. 2014). The parties dispute whether the Court should change that default rule and enter a stay until the conclusion of this case.

         A. The IDEA requires the Board to implement the hearing officer's decision pending this appeal.

         The 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”).

         “‘Educational placement', as used in the IDEA, means educational program-not the particular institution where that program is implemented.” White ex re. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003); see also 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.”) ...