In L.B. v. New York City Department of Education, No. 1:21-CV-9356 (MKV), 2022 WL 220085, 80 IDELR 102 (S.D.N.Y. Jan. 25, 2022), the court denied a request for a temporary restraining order and preliminary injunction to require the school system to pay for the student’s placement during the pendency of his case at a school unilaterally selected by his parents. The student was placed by the public school system at a private school called Learning Spring from fourth grade through graduation from eighth grade in June 2021. The school lacked a high school program. The student’s IEP team met in December 2020 to discuss a new placement. It agreed that the student’s needs could not be met in the public school system and referred his case to the Central Based Support Team, which is responsible for identifying private school placements. According to the complaint in court, the schools that the team referred him to rejected him or could not meet his IEP, so he had no high school placement. The parents ultimately made an application to the Cooke School and Institute. Though the parents could not afford the tuition on their own, the school agreed to let the student start there and have the parents pursue funding from the school system.
The parents gave notice to the public school system on June 17, 2021, that they would enroll the student at Cooke unless they were offered an appropriate placement. The parents filed a due process hearing request on July 1. In an October 7, 2021, decision on the parents’ request for “pendency protection” (i.e., stay-put), the hearing officer found that the school system had failed to identify a school that could meet the student’s needs as set out in his IEP and that there was no pendency placement available for him given that the student had aged-out of Learning Spring. The parents filed the action in court and sought emergency relief, but briefing was delayed at the request of the school system with the consent of the parents.
Interpreting the Second Circuit’s decision in Ventura de Paulino v. Department of Education, 959 F.3d 519, 529 (2d Cir. 2020), the court said that it could not order funding for the new school under the pendency placement provision, 20 U.S.C. § 1415(j). It said that a unilaterally chosen private placement could not constitute the student’s current educational placement even if it was substantially similar to the agreed-upon placement at Learning Spring that was no longer available. It said that the parents’ remedy was to pursue a claim for reimbursement of tuition at the new private school, though the parents had claimed they were of low income and could not afford to pay the tuition.
The court also rejected emergency relief under 14 U.S.C. § 1415(i)(2)(C)(iii), which permits any relief the court determines is appropriate to enforce the provisions of the IDEA. The court said that the primary consideration was irreparable harm, and that the student was currently attending the Cooke school under the temporary waiver of fees that the private school agreed to provide. The school, said the court, had said it would give 30 days notice before terminating the student. The court further said that the agreement of the parents to the delays in proceedings requested by the school system evidenced a lack of imminent harm. The court also questioned likelihood of success on the merits, specifically whether it had jurisdiction, because the administrative process had not been exhausted.
The decision is of greatest significance in its extension of Ventura de Paulino’s reasoning from the situation that occurred there – parental dissatisfaction with a previously agreed-upon placement that remained available to the student to the situation where the previously agreed-upon placement no longer existed. Whether other courts will make this leap remains to be seen, but impartial hearing officers may wish to be alert for future developments. The additional holdings in the case, particularly those about irreparable injury and exhaustion, will have less significance for IHO decision making. Parent attorneys who are aware of the case may be understandably reluctant to agree to even routine requests for delays by respondents if there is a potential need for emergency relief at some point in the case. The L.B. court did not discuss the extensive caselaw regarding excusing of exhaustion in IDEA cases, from Honig v. Doe, 484 U.S. 305 (1988), to cases such as Stropkay v. Garden City Union Free School District, 593 F. App’x 37 (2d Cir. 2014) (applying futility exception when school system failed to implement IEP), and Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990), which excused exhaustion when the school system failed to identify an appropriate private school for a student. Nevertheless, litigants may wish to take note of the L.B. court’s approach to the issue.