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Zvi D. v. Ambach

United States Court of Appeals, Second Circuit
Nov 26, 1982
694 F.2d 904 (2d Cir. 1982)

Summary

holding that a reimbursement settlement was not the appropriate antecedent for pendency placement determination because it was limited to one school year with a "view toward placing him in an appropriate public program" the next year

Summary of this case from L.L. v. N.Y.C. Dep't of Educ.

Opinion

No. 49, Docket 81-7667.

Argued October 1, 1982.

Decided November 26, 1982.

Joel B. Lieberman, Community Action for Legal Services, Inc., Brooklyn, N.Y. (Steven M. Bernstein, Brooklyn, N.Y., of counsel), for appellants.

Frederick W. Burgess, Albany, N.Y. (Robert D. Stone, Donald O. Meserve, Albany, N.Y., of counsel), for appellee Com'r of Educ.

Fay Leoussis, Asst. Corp. Counsel, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel for the City of New York, Leonard Koerner, New York City, of counsel), for municipal appellees.

Michael A. Rebell, Rebell Krieger, New York City (Marion C. Katzive, White Plains, N.Y., John C. Gray, Jr., Harold Adler, Brooklyn Legal Services, Brooklyn, N.Y., of counsel), Jane R. Stern, Advocates for Children of New York, Inc., Long Island City, N.Y., for amici curiae.

Appeal from the United States District Court for the Eastern District of New York.

Before LUMBARD, OAKES and WINTER, Circuit Judges.


This appeal is from the denial of a preliminary injunction that would direct the New York City Board of Education to fund a handicapped child's private education pending proceedings challenging a free appropriate public placement. The United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, held inter alia that the status quo section of the Education of the Handicapped Act, 20 U.S.C. § 1415(e)(3), did not apply since the child "was not promised and was not receiving public funding when the [complaint] proceedings were initiated [by his parent] and since he began the new school year [1980-81] in his private program without any new assurances." Zvi D. v. Ambach, 520 F.Supp. 196, 203 (E.D.N.Y. 1981). We affirm substantially on Judge Nickerson's opinion adding one caveat, on an issue called to our attention by amici curiae.

20 U.S.C. § 1415(e)(3) (1976) provides:

During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed.

Amici curiae are the class and individual plaintiffs in Jose P. v. Ambach and United Cerebral Palsy of N.Y.C., Inc. v. Board of Educ. of the City School Dist., consolidated actions No. 79-C-270, 560 brought in the United States District Court for the Eastern District of New York to implement special education reforms. Jose P. v. Ambach, 3 E.H.L.R. 551:245, 3 E.H. L.R. 551:412 (E.D.N.Y. 1979); United Cerebral Palsy of N.Y.C., Inc. v. Board of Educ. of the City School Dist., 3 E.H.L.R. 551:251 (E.D.N.Y. 1979), reviewed in part sub nom. Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982).

I. The Education of the Handicapped Act, 20 U.S.C. §§ 1400-1461 (1976 Supp. V 1981) gives parents a right to an impartial due process hearing on complaints with respect to the educational placement of their handicapped children, id. § 1415(b)(2), and to state or federal judicial review of final administrative decisions, id. § (e)(2). During the pendency of these administrative and judicial proceedings, "the child shall remain in the then current educational placement . . . until all such proceedings have been completed." Id. § (e)(3); 34 C.F.R. § 300.513 (1981). This provision is, in effect, an automatic preliminary injunction. The statute substitutes an absolute rule in favor of the status quo for the court's discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation and a balance of hardships. Compare Monahan v. Nebraska, 491 F.Supp. 1074, 1088 (D.Neb. 1980), aff'd in part, vacated in part on other grounds, 645 F.2d 592, 597-98 (8th Cir. 1981), with Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978).

20 U.S.C. § 1415(b) (1976) provides in part:

(1) The procedures required by this section shall include, but shall not be limited to —

. . . .

(E) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.

(2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child.

The educational agency and parent may, however, agree to a change in placement. 20 U.S.C. § 1415(e)(3); 34 C.F.R. § 300.513 (1981). If the parent's complaint involves an application for initial admission to public school, the child has a right to a public placement during the pendency of the proceeding. 20 U.S.C. § 1415(e)(3).
The due process requirements of New York law and regulations track the federal standard. N.Y.Educ.Law § 4402(1)(b)(3)(c) (McKinney 1981); 8 N.Y.C.R.R. § 200-1.5(b)(2)(viii); 16 Educ. Dep't Reg. 18 (1976) (due process safeguards in education regulations mandatory in determining handicapped placement).

Under the statute, the inquiry focuses on identifying "the then current educational placement," and, further, on who should pay for it, for implicit in the maintenance of the status quo is the requirement that a school district continue to finance an educational placement made by the agency and consented to by the parent before the parent requested a due process hearing. To cut off public funds would amount to a unilateral change in placement, prohibited by the Act. Monahan, 491 F.Supp. at 1089.

Neither the statute nor legislative history instructs a reviewing court how to identify "the then current educational placement." See Stemple v. Board of Educ., 623 F.2d 893, 897 (4th Cir. 1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981).

A handicapped child "placed in or referred to a private school or facility by a public agency," 34 C.F.R. § 300.401, has all the rights of a handicapped child served by a public agency. Id. § (b); 20 U.S.C. § 1413(a)(4)(B)(ii). The due process procedures apply even if a handicapped child is placed in a private school of the parent's choice although a free appropriate education is available; disagreements between the parent and the public agency regarding the availability of an appropriate program and who will pay for it are to be resolved under § 1415's procedural safeguards. 34 C.F.R. § 300.403(b). The public agency, however, is not required to pay for the parent-initiated placement. Id. § (a); Stemple v. Board of Education of Prince George's County, 623 F.2d 893, 897-98 (4th Cir. 1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981); Monahan, 491 F.Supp. at 1089-90.

We note that in New York City, parents who have sought educational placements for their children in public schools may unilaterally enroll their children in an appropriate program in approved private schools if a public placement is not offered within 60 days of application. The court has determined that unilateral parental placements are necessary to reduce lengthy waiting lists. Jose P. v. Ambach, 3 E.H.L.R. 553:298 (E.D.N.Y. 1982), modified in part, No. 79-C-270 (E.D.N.Y. July 8, 1982). See also Anderson v. Thompson, 658 F.2d 1205, 1213-14 (7th Cir. 1981).

II. Zvi D. is an 18-year-old student with minimal brain dysfunction who was transferred to the private The Alternative School from another private school by his parent in the fall of 1977. After enrolling Zvi D., the parent requested evaluation by the District 20 Subcommittee of the New York City Board of Education's Committee on the Handicapped (COH), apparently to determine Zvi's eligibility to receive public funding for his private schooling. The COH evaluated Zvi's handicap and in April of 1978 recommended a free appropriate public education placement. His parent contested this initial placement recommendation. Before the appropriateness of the COH recommendation could be reviewed, the Board of Education essentially agreed to postpone the initial evaluation until May 1979 and fund Zvi at The Alternative School for the 1978-79 school year only. The November 27, 1978, agreement clearly stated: "This funding is being provided with the stipulation that a review of Zvi's classification will be conducted at the end of the current year with a view toward placing him in an appropriate public program in September, 1979."

The municipal appellee claims that this action was due to the COH's failure to comply with the time limitations imposed by the Commissioner of Education in his supervisory capacity under 20 U.S.C. § 1414.

To compel compliance with the State's 60-day period in which a COH is required to recommend and effectuate an appropriate placement (8 N.Y.C.R.R § 200-1.5(d)), prior to December, 1980, the State Commissioner generally ordered local educational agencies to fund for one school year an existing private placement when they failed to comply with the time limitation.

Brief at 18.

In May of 1979 the Committee reevaluated Zvi D. for the 1979-80 school year and recommended placement in an HC-30 class at New Utrecht High School. His parent challenged this initial placement recommendation. Hearings on the appropriateness of Zvi D.'s classification and placement began in April 1980. On July 9, 1980, Impartial Hearing Officer Harry Weintraub affirmed the initial placement recommendation but, nevertheless, ordered the Board of Education to fund Zvi D. for the 1979-80 school year because of the COH's failure to have a physician present at its May 1979 meeting as was then required by Section 4402(b)(1) of the New York Education Law. The hearing officer then ordered a reevaluation of Zvi D., because a year had lapsed since the May 1979 evaluation and recommendation.

The third initial COH recommendation, on July 15, 1980, was in accord with the earlier ones — an HC-30 class at New Utrecht High School for the 1980-81 school year. Mrs. D. was still opposed to the public placement recommendation and again instituted administrative review proceedings to challenge its appropriateness. Thus, Mrs. D. again refused to place her son in public school, and instead maintained him at The Alternative School.

III. The issue before us on review is whether the district court erred in failing to enjoin the Board of Education to fund Zvi D.'s private schooling. We find that the appellant has not established that The Alternative School was Zvi D.'s "current educational placement" within the meaning of 20 U.S.C. § 1415(e)(3). Neither the November 1978 stipulation nor the July 9 Hearing Officer's Report constituted public agency placement of Zvi D., nor did the COH at any time determine that the parent's private placement was appropriate. Rather than trying to change Zvi D.'s placement, the COH offered an initial placement. Zvi's parent is under no requirement to accept this public school placement, and may seek review of Hearing Officer Weintraub's determination that the placement is appropriate for Zvi's needs. During this review of his initial placement, Zvi has a right to a place in public school, id., or he may remain at The Alternative School at his parent's expense.

We of course express no view whether Zvi D. could recover his tuition costs as damages if judicial review determined that the recommended public placement was not appropriate. The statute creates a private cause of action and directs that the court "shall grant such relief as [it] determines is appropriate." 20 U.S.C. § 1415(e)(2). Courts are divided on whether money damages are appropriate in general, and in particular whether reimbursement of tuition is justified. See the discussion in Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Gregg B. v. Board of Educ. of Lawrence School Dist., 535 F.Supp. 1333, 1338-39 (E.D.N.Y. 1982).

Thus we agree with the district judge that the status quo provision would apply if the Board of Education's Committee on the Handicapped had previously agreed to, or had been ordered to provide private school placement. In Zvi D.'s situation, the COH had not so agreed or been ordered, though it had through stipulation agreed to pay for The Alternative School placement in the 1978-79 school year and been ordered by Impartial Hearing Officer Weintraub to pay for such placement in the 1979-80 school year because the COH had failed to have a physician present at the classification conference held on May 29, 1979. Payment and placement are two different matters.

IV. But we do not agree with Judge Nickerson that § 1415(e)(3) must be read to limit a child's status quo rights "to finish[ing] the school year in his existing placement." 520 F.Supp. at 204. Insofar as this analysis was necessary to the district court's conclusion, we modify that decision. The time frame of the administrative and judicial "proceedings" under § 1415(e)(3) is not necessarily coterminous with the limits of the school year. Rather, it includes the time necessary to review and adjudicate the merits of a single "complaint" regarding evaluation or placement of the child. In an appropriate case, the statute would require us to order funding for the duration of the review proceedings.

Judgment affirmed.


Summaries of

Zvi D. v. Ambach

United States Court of Appeals, Second Circuit
Nov 26, 1982
694 F.2d 904 (2d Cir. 1982)

holding that a reimbursement settlement was not the appropriate antecedent for pendency placement determination because it was limited to one school year with a "view toward placing him in an appropriate public program" the next year

Summary of this case from L.L. v. N.Y.C. Dep't of Educ.

stating that the stay-put provision "is, in effect, an automatic preliminary injunction" that "substitutes an absolute rule in favor of the status quo for the court’s discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation and a balance of hardships"

Summary of this case from De Paulino v. N.Y.C. Dep't of Educ.

In Zvi D., a student was transferred by his parents to a private school, different from the one in which he had been placed by the state.

Summary of this case from K.D. ex rel. C.L. v. Dep't of Educ.Hawaii

In Zvi D., the reimbursement was initially caused by a stipulation entered into by the parties without an administrative order and later continued when the hearing officer ordered reimbursement due to a procedural failure by the school board committee in charge of evaluating the complaining student's status.

Summary of this case from Board Educ. Pawling Ctrl. Sch. Dist. v. Schutz

stating that § 1425(j) "substitutes an absolute rule in favor of the status quo for the court's discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation and a balance of hardships"

Summary of this case from Johnson ex Rel. Johnson v. Sp. Educ. Hearing

In Zvi D., the settlement agreement provided funding "with the stipulation that a review of Zvi's classification will be conducted at the end of the current year with a view toward placing him in an appropriate public program in September 1979."

Summary of this case from Rena C. v. Colonial Sch. Dist.

In Zvi D.—which has been approvingly cited by the Third Circuit, see Drinker, 78 F.3d at 864-65—the court held that "[u]nder the statute, the inquiry focuses on identifying the 'then current educational placement,' and, further, on who should pay for it, for implicit in the maintenance of the status quo is the requirement that a school district continue to finance an educational placement made by the agency and consented to by the parent before the parent requested a due process hearing.

Summary of this case from D.M. ex rel. E.M. v. N.J. Dep't of Educ.

declining to define private school as current educational placement because no educational agency had determined that the parent's private placement was appropriate

Summary of this case from A.B. ex rel. Bell v. Franklin Twp. Cmty. Sch. Corp.

describing the pendency provision of the IDEA as an "automatic preliminary injunction"

Summary of this case from C.B. v. New York City Department of Education

In Zvi D., the parties entered into a settlement agreement that obligated the defendant District to pay for the student's private school education for the 1978-79 school year.

Summary of this case from Gabel v. Bd. of Educ. of Hyde Park Cent. Sch. Dist

In Zvi D. v. Ambach, 694 F.2d 904 (2d Cir. 1982), the Second Circuit described the "stay put" provision as follows: "This provision is, in effect, an automatic preliminary injunction.

Summary of this case from Termine ex rel. Termine v. William S. Hart Union High School Dist.

stating that [§ 1415(j)] "substitutes an absolute rule in favor of the status quo for the court s discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation and a balance of hardships'

Summary of this case from Termine ex rel. Termine v. William S. Hart Union High School Dist.

In Zvi D., the parent of Zvi, a child with minimal brain dysfunction, enrolled Zvi in a private school and requested evaluation by the school district and board of education to determine Zvi's eligibility to receive public funding for his private schooling.

Summary of this case from Peter G. v. Chicago Public School District No. 299

In Zvi D., the only reasons the Board of Education had paid for the previous two years' tuition was the explicit one-year agreement and the procedural violation.

Summary of this case from Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.
Case details for

Zvi D. v. Ambach

Case Details

Full title:ZVI D., BY HIS MOTHER AND NEXT FRIEND, SHIRLEY D., APPELLANTS, v. GORDON…

Court:United States Court of Appeals, Second Circuit

Date published: Nov 26, 1982

Citations

694 F.2d 904 (2d Cir. 1982)

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