IDEA provides that in some circumstances a child with a disability who violates school rules can be placed in an interim alternative educational setting for a specified period of time. 20 U.S.C. § 1415(k)(1), (2)(G), (3)(B), (4)(A). The issue of when an interim alternative educational setting may be extended beyond the initial set period arises relatively infrequently but may present challenges to an impartial hearing officer tasked with making the decision. In a published decision, Olu–Cole v. E.L. Haynes Pub. Charter School, No. 18-7028, 2019 WL 3242552, 74 IDELR 215 (D.C. Cir. July 19, 2019), the District of Columbia Circuit reversed the denial of an injunction that had been sought by a parent to return a student to his previous placement due to the expiration of the period of removal. The case involved a high school student with an emotional disability. He assaulted another student, causing the student a concussion. Although the school found that the misconduct was a manifestation of the student’s disability, it exercised the prerogative under § 1415(k)(1)(G)(iii) to suspend him for 45 days. It offered him educational services in an isolated setting as the interim alternative education setting under the statute.

The student attempted to return to his previous placement (in a public charter school) near the conclusion of the 45 days, but the school barred his admission and requested a due process hearing to transfer the student to a private, special education day school and continue the interim placement until the transfer. Then when the suspension period ended while that hearing was still pending, the parent filed a complaint in district court seeking a temporary restraining order and preliminary injunction to compel reinstatement of the student in the charter school. The district court denied relief, ruling that even though the parent was likely to succeed on the merits of the stay-put claim, the hearing officer was expected to rule in two weeks and irreparable harm had not been shown to result from extending the suspension. Oddly, the day before the district court decision, the school moved to withdraw its due process complaint, then several days later readmitted the student, and the hearing officer dismissed the school’s complaint pursuant to the school’s motion. Meanwhile, the parent appealed the district court decision.

The court of appeals reversed. It reasoned that the IDEA provides for an automatic, statutory injunction when the stay-put right applies, and that a student seeking to enforce the stay-put right need not show irreparable harm. Under Honig v. Doe, 484 U.S. 305, 328 (1988), a district court may temporarily enjoin a dangerous child from attending school, but the school has to ask for injunctive relief and make the necessary showing. It was “straightforward legal error” to put the burden on the parent to show that the student would suffer irreparable harm if the injunction were not granted. Olu-Cole, 2019 WL 3242552, at *6. Even though the district court made a finding that readmission would create an “unacceptably significant potential of injury to other interested parties,” that was not sufficient as a basis for keeping the student out of school when there was no finding that the harm was “certain, great, and actual.” Id. at *7 (internal quotation marks omitted), and switching the burden to the parent contravened the statute. The court further pointed out that the school’s ultimate decision to readmit the student and failing to inform the district court undermined the conclusion that the student actually was dangerous.

The readmission of the student might suggest that the case was moot, but the court disagreed. It said that the student retained a live claim for compensatory education, and that the decision on the injunction still mattered because of its effect on that claim: “In holding that M.K. was not entitled to a stay-put injunction, the district court’s order had the dual effect of both (i) empowering the School to continue excluding M.K. from its educational services, and (ii) limiting M.K.’s claim to compensatory educational relief for the time of that extended exclusion. . . . By holding that M.K. was not entitled to stay put, the district court foreclosed M.K.’s ability to obtain compensatory education for the (post-suspension) period of his exclusion from school.” Id. at *8. The court said that under cases such as Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015), compensatory education generally should be awarded to make up for the difference between the full value of stay-put services owed and what was actually provided. In this case, the stay-put service of in-school education would be the baseline to for that measurement.

Finally, the court further held that 34 C.F.R. § 300.533, which limits an interim alternative educational placement to the 45-day period in § 300.530(g), does not conflict with the IDEA’s provision saying that the child “remain in the interim alternative educational setting,” 20 U.S.C. § 1415(k)(4), until the hearing officer issues a decision. The court pointed out that § 1415(k)(1)(G) limits the authority to remove the student for “not more than 45 school days,” and a parallel restriction applies to hearing officer authority under §1415(k)(3)(B)(ii)(II).

The significance of the Olu-Cole decision for impartial hearing officers is found in the authority provided hearing officers by §1415(k)(3)(B)(ii)(II) to “order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.” The court ruled that it was straightforward error to place the burden on the parent to show that continuing the alternative setting imposed irreparable harm on the child, rather than placing the burden as to dangerousness on the school. In the situation of the district court, that burden would require a showing of “certain, great, and actual” harm. The case also reinforces the point that a case is not moot when its outcome has a bearing on the measure of compensatory education, which in a case of denial of stay-put rights, is to be measured by the difference in benefit between services actually received and those that would have been delivered in the original, stay-put setting.