Morrison ex rel. JM v. Perry Sch. Dep't

• Decision Date: 28 December 2018
• Docket Number: 1:18-cv-00106-DBH
• Parties: JEFFREY MORRISON, as parent of minor child JM, Plaintiff v. PERRY SCHOOL DEPARTMENT, Defendant
• Court: U.S. District Court — District of Maine

JEFFREY MORRISON, as parent of minor child JM, Plaintiff v. PERRY SCHOOL DEPARTMENT, Defendant

1:18-cv-00106-DBH

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

December 28, 2018

ORDER ON MOTION TO SUPPLEMENT THE RECORD AND RECOMMENDED DECISION ON MOTION FOR "STAY-PUT" ORDER

Plaintiff, as a parent of a minor child, JM, alleges the Perry School Department violated due process and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.¹ (Complaint, ECF No. 1.) The matter is before the Court on two motions filed by Plaintiff: (1) a motion to supplement the record (Motion, ECF No. 29); and (2) a motion for a "stay-put" order requiring that JM and his two siblings remain at Perry Elementary School during this litigation, rather than attend school in Eastport, where Plaintiff and his children have lived since late 2015. (Motion, ECF No. 28).

Following a review of Plaintiff's motions, Defendant's responses, and the record, I grant the motion to supplement the record, and I recommend the Court deny the motion for a stay-put order.

DISCUSSION

1. Motion to Supplement the Record

Following a scheduling conference, the Court issued a scheduling order that in part stated:

The issues in the case consist of the following: (1) whether the administrative decision on Plaintiff's challenge to the adequacy of the [individual education plan (IEP)] developed and implemented for JM during the 2015-2016 and 2016-2017 academic years was erroneous; and (2) whether Plaintiff's right to due process during the administrative proceedings was violated.

Plaintiff also asserts that the Hearing Officer improperly dismissed Plaintiff's request for a hearing as to the IEP developed for and implemented during the 2017-2018 academic year. On or before August 3, 2018, Plaintiff shall notify the Court and Defendant whether Plaintiff intends to pursue a substantive claim as to the 2017-2018 academic year, or whether Plaintiff seeks to cite the Hearing Officer's dismissal of the request for hearing as evidence in support of Plaintiff's due process claim. If Plaintiff asserts a substantive claim for the 2017-2018 academic year, Defendant intends to file a motion to dismiss the claim. Accordingly, if Plaintiff notifies the Court that he intends to assert a substantive claim for the 2017-2018 academic year, the Court will issue an order to govern the parties' briefing of the motion to dismiss.

(Scheduling Order, ECF No. 25 at 1-2.) In response to the scheduling order, Plaintiff filed a notice informing the Court he intended only to cite the hearing officer's dismissal of the request for a hearing as evidence in support of Plaintiff's due process claim. (Notice, ECF No. 26.)

The Maine Department of Education filed the IDEA administrative record on two consolidated cases (## 18.008H, 18.029H). (IDEA Administrative Record ("Record"), ECF No. 27, Record Vol. I at i (Index), 101 (Order).)

Case #18.008H is Plaintiff's due process hearing request filed on July 24, 2017. (Order, Record Vol. II at 327.) The hearing officer's prehearing report and order described the issue in the matter as follows: "Did Perry Public Schools deny Student a free, appropriate, public education (FAPE) during the two year period between July 24, 2015 and July 24, 2017?" (Prehearing Report and Order, Record Vol. I at 163.)

Case #18.029 is Plaintiff's due process hearing request, filed on October 6, 2017. (Order, Record Vol. II at 327.) The hearing officer found Plaintiff had requested certain independent evaluations, and Defendant had refused the request. (Order, Record Vol. II at 331.) The hearing officer's prehearing report and order described the issue in the matter as follows: "Were the psychological and speech-language evaluations conducted by Perry Public Schools (i.e., those which were discussed at the October 5, 2017 IEP Team meeting) inadequate and inappropriate thereby warranting independent evaluations of same at public expense?" (Prehearing Report and Order, Record Vol. I at 163.)

In Plaintiff's motion to supplement the record, Plaintiff requests the Court order the Department to provide the complete administrative record in the case that concerns the 2017-2018 academic year (Case # 18.060H).² (Motion, ECF No. 29 at 3.) Plaintiff filed an attachment that contains Plaintiff's proposed additions, evidently to complete the recordas to all three cases (Case ## 18.008H, 18.029H, 18.060H). (Attachments, ECF Nos. 31-1 (index), 31-2 (proposed additions).) Plaintiff also requests the Court admit in evidence an "IDEA Hearing Officer Prequalification Notice," which Plaintiff asserts is relevant to his claims. (Motion, ECF No. 29 at 3; Attachment, ECF No. 31-2 at 66-67.)

Defendant does not object to Plaintiff's proposed additions. (Response, ECF No. 33 at 2.) Defendant proposes several additional emails be added to the record for completeness. (Id.; Attachment, ECF No. 33-1.) Plaintiff did not file a reply in support of his motion to supplement the record, and thus Plaintiff has not objected to Defendant's proposed additions.

Without objection from either party, Plaintiff's and Defendant's proposed additions are made part of the record. See Johnson v. Boston Public Schools, 906 F.3d 182, 190-91 (1^st Cir. 2018) (noting "[d]istrict courts considering challenges to administrative IDEA decisions apply an intermediate standard of review," under which "'[a] district court reviews the administrative record, which may be supplemented by additional evidence from the parties'") (quoting D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35-36 (1^st Cir. 2012)).

2. Motion for a "Stay-Put" Order

Plaintiff asks the Court to issue a "stay-put" order, pursuant to 20 U.S.C. § 1415(j), concerning JM, who is subject to the IDEA, and Plaintiff's two other children. (Motion, ECF No. 28 at 1.) Title 20 U.S.C. § 1415(j) provides:

Except as provided in subsection (k)(4), 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 inthe then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.

In late 2015, Plaintiff moved with his children from Perry to Eastport, and they have resided in Eastport since the move. (Affidavit of Elizabeth Cushing, ECF No. 30-1 at 3 ¶¶ 8-10.)³ At the time of the hearing, Plaintiff resided in Eastport. (Record Vol. II at 329.) The Perry School Department and the Eastport School Department are each municipal school units under state law, 20-A M.R.S. § 1(26)(G), and each provides educational services for students who reside with one or both parents in the respective municipality. (Id. at 1-2 ¶¶ 2-3.)

The Court has jurisdiction over Plaintiff's claims regarding JM, pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); 28 U.S.C. § 1343(a)(4) ("The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . to secure equitable or other relief under any Act of Congress providing for the protection of civil rights. . . ."); and 20 U.S.C. § 1415(i)(3)(A) ("The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy.") See M.M. v. Paterson Bd. of Educ., 736 F. App'x 317, 319 n.3 (3d Cir. 2018) (affirmingthe denial of the parent's request for preliminary injunctive relief to promote the child to high school). Plaintiff, however, asserts no actionable claim on behalf of his two other children, who are not subject to the IDEA.

In addition, because Plaintiff voluntarily and unilaterally relocated with JM from Perry to Eastport, Plaintiff is not entitled to a stay-put order for JM. "The purpose of the stay-put provision is to 'strip schools of the unilateral authority they had traditionally employed to exclude disabled students ... from school' and to protect children from any retaliatory action by the local educational agency." Millay v. Surry School Dept., 584 F. Supp. 2d 219, 228 (D. Me. October 28, 2008) (quoting Honig v. Doe, 484 U.S. 305, 323 (1988) (emphasis in original). In this case, the Perry municipal school unit did not take any action to exclude JM from school or to alter his independent education plan. Instead, Plaintiff relocated to a different municipal school unit (Eastport). Through his motion, Plaintiff asks the Court to issue a stay-put order under § 1415(j) to require the school unit in the municipality from which he moved (Perry) to continue to educate JM.

The issue is similar to the issue presented in J.F. v. Byram Twp. Bd. of Educ., 629 F. App'x 235, 238 (3d Cir. 2015), where the Third Circuit concluded that "because J.F.'s parents unilaterally relocated him from Westwood to Byram, the stay-put provision is inoperative and Byram meets its obligation by complying with § 1414(d)(2)(C)(i)(I)." See also Michael C. ex rel. Stephen C. v. Radnor Twp. Sch. Dist., 202 F.3d 642, 651 (3d Cir. 2000) (holding that "where a parent unilaterally removes a child from an existing placement determined in accordance with state procedures, and puts the child in a different placement that was not assigned through proper state procedures, the protections of thestay-put provision are inoperative until the state or local educational authorities and the parents agree on a new placement").

The reasoning and conclusion of the Third Circuit are sound. As the Court in Byram noted, when a family moves to another school district within the state, the new school district becomes responsible for providing an independent education plan in accordance with 20 U.S.C. § 1414(d)(2)(C)(i)(I)⁴ 629 F. App'x at 238. Title 20 U.S.C. §...