Andrade v. Stewart

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JOSEPH FRANK ANDRADE CIVIL ACTION

VERSUS

WAYNE T. STEWART, ET AL. NO. 20-00886-BAJ-SDJ

RULING AND ORDER

Before the Court is Plaintiffs pro se Motion for Preliminary Injunction

(Doc. 22). The Motion is opposed. (Doc. 30). Plaintiff filed a Reply. (Doc. 32).

Defendant filed a Sur-Reply. (Doc. 36). Plaintiff seeks a Court Order directing

Defendant East. Baton Rouge Parish School Board to enroll Plaintiff s son, J A, ina

private residential facility focused on educating children with autism, paid for by the

School Board, and subject to Plaintiffs approval. (Doc. 22-2, p. 1). Plaintiff asks the

Court to make this Order effective during the pendency of proceedings in the

above-captioned matter, including any appeal. (/d. at p. 1-2). For the reasons stated

herein, Plaintiffs Motion is DENIED.

I. BACKGROUND

This case arises out of the allegedly inadequate education J.A. received at

Kast Baton Rouge Parish public schools. (Doc. 29). Plaintiff withdrew his son from

public school in October 2019 and enrolled him in Hope Academy, a private school.

(id. at § 3; Doc. 29-1, p. 6). Plaintiff now seeks to enroll his son in the Monarch Center

for Autism at East Baton Rouge Parish School Board’s cost. (Doc. 29, p. 39).

Plaintiff alleges the following facts. Plaintiff is J.A.’s father. Ud. at { 3). J.A.

attended Woodlawn Elementary School from August 2014 through October 10, 2019.

(d.). Hast Baton Rouge Parish School Board (“School Board”) was the “owner and

operator” of Woodlawn. (d.). In December 2011, J.A. developed seizures and was

diagnosed with epilepsy at the age of three. (/d.). On June 14, 2019, J.A. was

diagnosed with autism. (fd. at §] 18).

Plaintiff previously filed a complaint with the Louisiana Department of

Education regarding Woodlawn. (7d. at 5). Therein, Plaintiff alleged that the

Woodlawn faculty and administration lied to him for four years by informing Plaintiff

that J.A. could not be held back. Ud.). Plaintiff also alleged that the Woodlawn faculty

allowed J.A. to hit, kick, push, and spit on his classmates without recourse. (/d.). The

Woodlawn administration was allegedly unaware of these events. (/d.). Because

Woodlawn did not enforce boundaries at school, J.A.’s behavior allegedly worsened.

Ud. at J 9). Plaintiff further alleged that Woodlawn did not follow the Individualized

Education Plan (“IEP”) developed for J.A.1 Ud. at 4 5). Moreover, Plaintiff asserted

that the School Board did not properly evaluate J.A., and if it had, the need for autism

related services would have been identified sooner. (Id.).

On February 2, 2020, an investigating attorney for the LDOE issued a letter

concluding that “the evidence does not allow for a conclusion that the East Baton

! The IMP is “the centerpiece of the statute's education delivery system for disabled children.”

through Moore-Watson v. Rankin Cty. Pub. Sch. Dist., No. 3:19-CV-107 HTW-LGI,

2022 WL 340688, at *4 (S.D. Miss. Jan. 5, 2022) (citing Honig v. Doe, 484 U.S. 305, 311

(1988)). “It is a comprehensive plan prepared by a child's [EP Team, which includes teachers,

school officials, and the child's parents.” fd. (eiting 20 U.S.C. § 1414(d)(1)(B)).

Rouge Parish school system did not provide the student FAPE],|’ a “free appropriate

public education.” Ud. at { 16). Plaintiff submitted a Due Process Hearing request

on May 29, 2020 to the Division of Administrative Law. Ud. at { 17). A Due Process

hearing was held from August 3, 2020, through August 5, 2020. Ud. at § 28). The

Administrative Law Judge ruled against Plaintiff, finding that he “did not prove that

[the] School Board denied Child FAPE by not identifying Child’s exceptionality as

autism in the reevaluation. [| Because Parent did not prove a denial of FAPE, Parent

is not entitled to the requested remedies.” (Doc. 29-1, p. 231-282).

Plaintiff submitted a second Due Process hearing request on

September 17, 2020. (Doc. 29, | 28). On September 30, 2020, the Hearing Officer

rendered her decision in favor of the School Board. (id. at § 33).

Plaintiff initiated this action to appeal the Administrative Law Judge’s

decision. (Doc. 29). Plaintiff currently seeks a preliminary injunction. (Doc. 22),

I. PROCEDURAL HISTORY

Plaintiff filed suit on behalf of himself and his minor child, J.A. (Doc. 1).

Plaintiff asserts that the Court has jurisdiction pursuant to 20 U.S.C. § 1415@)(2)(A)

and 28 U.S.C. § 1331. (Doc. 29, § 2). The Court indeed has jurisdiction over this

matter pursuant to 28 U.S.C. § 13831, based on the federal question asserted under

the Individuals with Disabilities Education Act (TDEA”), 20 U.S.C. § 1400, et seg.

Defendants moved to dismiss Plaintiff's claims. (Doc. 15). The Court granted

2 “Included within the framework of the IDEA is the requirement that local educational

agencies must provide to each disabled child within its jurisdiction a ‘free appropriate public

education” (FAPE) M.W. through Moore-Watson v. Rankin Cty. Pub. Sch. Dist.,

No. 3:19-CV-107 HTW-LGI, 2022 WL 340688, at *6 (S.D. Miss. Jan. 5, 2022).

Defendants’ Motion in part and denied Defendants’ Motion in part. (Doc. 45). The

claims remaining in the case include Plaintiffs claims, both individually and on

behalf of his minor sen, against the School Board pursuant to the IDEA and under

Louisiana tort law for negligent misrepresentation. (id. at p. 4).

Hil. LEGAL STANDARD

A. Preliminary Injunction

“A preliminary injunction is an extraordinary and drastic remedy; it is never

awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations

and quotations omitted); see also Allied Mkig. Grp., Inc. v. CDL Mbtg., Inc.,

878 F.2d 806, 809 (5th Cir. 1989) (preliminary injunctive relief “is an extraordinary

remedy and should be granted only if the movant has clearly carried the burden of

persuasion with respect to all four factors”); Mississippi Power & Light Co. v. United

Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (The decision to grant a request

for preliminary injunction is to be treated as the exception rather than the rule.”).

The decision to grant or deny a request for preliminary injunction is within the sound

discretion of the Court. See Allied Mktg. Grp., Inc., 878 F.2d at 809.

At ail times, the burden of persuasion rests with the plaintiff to establish each

of the four elements required for issuance of a preliminary injunction: (1) a

substantial likelihood of prevailing on the merits; (2) a substantial threat of

irreparable injury if the injunction is not granted; (3) the threatened injury outweighs

any harm that will result to the non-movant if the injunction is granted; and (4) the

injunction will “not disserve the public interest.” See Barton v. Hueria, 618 Fed. App’x

426, 427 (5th Cir. 2015) (citation omitted). If a plaintiff fails to meet its burden

regarding any of the necessary elements, the Court need not address the other

elements necessary for granting a preliminary injunction. See Roho, Inc. v. Marquis,

902 F.2d 856, 3861 (5th Cir. 1990) (declining to address the remaining elements

necessary to obtain a preliminary injunction after finding that the plaintiff failed to

show a substantial likelihood of success on the merits); see also Garden Dist. Book

Shop, Ine. vu. Stewart, 184 F. Supp. 3d 331, 385 (M.D. La. 2016). A preliminary

injunction is an “extraordinary remedy” that should not be granted unless a party

demonstrates the above four factors by a “clear showing.” Valley □□

Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir.1997).

B. IDEA

The IDEA is a federal law that governs special education and related services

in public schools for students with disabilities. Mann v. La. High Sch. Athletic Ass'n,

585 F. App'x 405, 410-11 (5th Cir. 2018) (ctting Bd. of Educ. of Hendrick Hudson

Cent. Sch, Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 179-81 (1982) (describing

the IDEA). The IDEA applies to all students “with intellectual disabilities, hearing

impairments (ncluding deafness), speech or language impairments, visual

impairments (including blindness), serious emotional disturbance .. . orthopedic

impairments, autism, traumatic brain injury, other health impairments, or specific

learning disabilities... who, by reason thereof, need[ | special education and related

services,” Mann, 535 F. App'x at 411 (citing 20 U.S.C. § 1401(8)). “In short, the IDEA

provides that special education services must be provided to those public school

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students who, by reason of an impairment or learning disability, need special

education services.” Id.

The purpose of IDEA:

is principally to provide handicapped children with a free appropriate

public education which emphasizes special education and related

services designed to meet their unique needs. The Act contemplates that

such education will be provided where possible in regular public schools,

with the child participating as much as possible in the same activities

as nonhandicapped children, but the Act also provides for placement in

private schools at public expense where this is not possible.

St. Tammany Par, Sch, Bd. v. State of La., 142 F.3d 776, 783 (5th Cir. 1998) (citing

Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,

471 U.S. 359, 369 (1985) G@nternal quotation marks and citations omitted)).

Under the IDEA, schools must identify disabled children, evaluate them,

create an “Individualized Education Plan” (“TEP”) for each child so identified, and

review every IEP at least once each year. 20 U.S.C. § 1414(d)(2) and (d)(4); see

M.W. through Moore-Watson U. Rankin Cty. Pub. Sch. Dist.,

No. 3:19-CV-107 HTW-LGI, 2022 WL 340688, at *2~—3 (S.D. Miss. Jan. 5, 2022) (citing

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005)). Each JEP must include an

assessment of the child's current educational performance, must articulate

measurable educational goals, and must specify the nature of the special services that

the school will provide. 20 U.S.C.§ 1414(d)(1)(A); see MW. through Moore-Watson,

2022 WL 340688, at *2-3 (citing Schaffer at 546 U.S. at 53).

At the core of the IDEA is the cooperative process that it establishes between

parents and schools. M.W. through Moore- Watson, 2022 WL 340688, at *8. Congress

placed great importance upon compliance with procedures giving parents a large

degree of participation at every stage of the administrative process. Jd. (citing

Bd. Of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley,

458 U.S. 176, 205-06 (1982)).

They [the parents] must be informed about and consent to evaluations

of their child under the Act. § 1414(c)(8). Parents are included as

members of “IEP teams.” § 1414(d)(1)(B). They have the right to examine

any records relating to their child, and to obtain an “independent

educational evaluation of the[ir] child.” § 1415(b)(1). They must be given

written prior notice of any changes in an IEP, § 1415(b)(3), and be

notified in writing of the procedural safeguards available to them under

the Act, § 1415(d)q1).

through Moore-Watson, 2022 WL 840688, at *2-3 (citing Schaffer,

546 U.S. at 58).

i, Standard of Review Under the IDEA

Under the IDEA, the court reviews the factual findings of administrative

hearing officers “virtually de novo.” Seth B. ex rel. Donald B. v. Orleans Par. Sch. Bd.,

810 F.3d 961, 979-80 (5th Cir. 2016). The district court is required to “accord ‘due

weight’ to the hearing officer's findings,” but it “must ultimately reach an

independent decision based on the preponderance of the evidence.” Id. at 966. In turn,

the court must “reach ... independent concluston|s] based upon the preponderance

of the evidence” as to such questions as whether students require more or less

restrictive learning environments, whether [EPs are “reasonably calculated to enable

[children] to receive educational benefits,” and whether schools' failures in

implementing IEPs implicate “significant provisions of .. . TEP[s]” or are instead

“de minimis.” Jd. at 979.

ii. Relief Available under IDEA

The United States Supreme Court has emphasized that “[p]arents are entitled

to reimbursement [of private school tuition] only if a federal court concludes both that

the public placement violated IDEA and the private school placement was proper

under the Act.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246 (2009) (emphasis

omitted). Even then, according to the Forest Grove case, courts have discretion as to

the amount of a reimbursement award. Id. at 247. A court may consider the equities

involved in deciding whether parents are entitled to reimbursement for some or all of

the child's private school tuition, such as whether the parents gave the School District

notice that they intended to enroll their child in private school, and the School

District's opportunities for evaluating the child. fd.

Parents who “unilaterally change their child's placement during the pendency

of review proceedings, without the consent of state or local school officials, do so at

their own financial risk,” Jd. (quoting Florence County Sch. Dist. Four v. Carter,

510 U.S. 7, 15 (1998)); see also M.W. through Moore-Watson, 2022 WL 340688,

at *3-8 (“This court does not order Defendant to pay for M.W.'s private school tuition;

however, should M.W.'s parents choose to re-enroll M.W. in the Rankin County School

District, this court orders that he receive all appropriate testing and evaluation [] and

that a new IEP should be developed with the input of the child’s parents .. .”).

IV. DISCUSSION

To succeed on a preliminary injunction, Plaintiff must establish a substantial

likelihood of prevailing on the merits. See Barton v. Huerta, 613 Fed. App’x 426, 427

(5th Cir. 2015). Accordingly, the Court begins its inquiry here. For the reasons stated

below, the Court finds that Plaintiff cannot bear his burden at this stage of the

litigation.

Plaintiff seeks a Court Order directing the School Board to enroll J.A. in a

private residential facility focused on educating children with autism, paid for by the

School Board, and subject to Plaintiffs approval. (Doc. 22-2, p. 1). Plaintiff appears

to specifically request J.A.’s enrollment at Monarch Center for Autism. (Doe. 29,

p. 39). Plaintiff asks the Court to make this Order effective during the pendency of

proceedings in the above-captioned matter, including any appeal.? (Doc. 22-2, p. 1-2).

The School Board argues that residential placement is neither necessary nor

appropriate. (Doc. 36, p. 1). The School Board asserts that Plaintiff must be placed in

the least restrictive environment appropriate to his needs, and that a residential

placement is the most restrictive environment in which a student may be placed.

Ud. at p. 2).

The School Board also argues that because J.A. has not been enrolled in East

Baton Rouge Parish schools since 2019, the IEP Team has not had the opportunity to

consider the recommendations contained in J.A.’s private evaluation. Ud. at p. 3).

Additionally, the TEP Team has not had an opportunity to develop and offer an □□□

in accordance with its own reevaluation completed in January 2020 due to Plaintiffs

3 ‘The Court notes that it will not consider whether Plaintiff is entitled to reimbursement for

J.A.’s current placement in private school at this time, The relief requested in Plaintiffs

Motion for Preliminary Injunction is confined to his request for J.A.’s placement in a

residential school paid for by the School Board.

removal of J.A. from the public school. Ud.). The School Board contends that

consideration of residential placement at public expense prior to having this

opportunity would be premature. Ud. at p. 4).

The U.S. Court of Appeals for the Fifth Circuit articulated the test for

determining the appropriateness of residential placement as follows: “[Flor a

residential placement to be appropriate under IDEA, the placement must be 1)

essential in order for the disabled child to receive a meaningful educational benefit,

and 2) primarily oriented toward enabling the child to obtain an education.”

Richardson Indep. Sch. Dist. v. Michael Z, 580 F.3d 286, 299 (5th Cir. 2009). The

Circuit emphasized:

The first prong of our test requires a court to find that the placement is

essential for the child to receive a meaningful educational benefit. In

other words, if a child is able to receive an educational benefit without

the residential placement, even if the placement is helpful to a child's

education, the school is not required to pay for it under IDEA. This

formulation of the test aligns with the goal of IDEA: to enable a disabled

child to receive a meaningful educational benefit. Moreover, this prong

is directly tied to IDEA's implementing regulations, which state that

“jf placement in a public or private residential program is necessary to

provide special education and related services to a child with a

disability, the program, including non-medical care and room and board,

must be at no cost to the parents of the child.” 34 C.F.R. § 300.302.

Id. at 300, Accordingly, for present purposes, the Court must first determine whether

Plaintiff has carried his burden of showing that placement at a residential facility is

essential for J.A. to receive a meaningful educational benefit. See id.

Here, the Court coneludes that Plaintiff has failed to show a substantial

likelihood that a residential placement is essential to J.A.’s education. While perhaps

J.A. would benefit from a residential placement, the Fifth Circuit demands more

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before the State is required to pay for it: Plaintiff must show that the child is unable

to receive an educational benefit without the residential placement. See id, It is

undisputed that J.A. currently attends a private school, Hope Academy. There is no

indication, however, that J.A. is unable to receive an educational benefit in his

current environment at the Hope Academy.

Second, the Court must determine whether the residential placement is

primarily oriented toward enabling J.A. to obtain an education. /d. Regarding this

second prong, the Fifth Circuit has emphasized:

IDEA, though broad in scope, does not require school districts to bear

the costs of private residential services that are primarily aimed at

treating a child's medical difficulties or enabling the child to participate

in non-educational activities. IDEA ensures that all disabled children

receive a meaningful education, but it was not intended to shift the costs

of treating a child's disability to the public school district. This is made

clear in [DEA's definition of “related services,” which limit reimbursable

medical services to those “for diagnostic and evaluation purposes only.”

20 U.S.C. § 1401(22); see Irving Ind. Sch. Dist. v. Tatro, 468 U.S. 888,

892-98, 104 5.Ct. 33871, 82 L.Ed.2d 664 (1984) (noting that the medical

services exclusion was “designed to spare schools from an obligation to

provide a service that might well prove unduly expensive and beyond

the range of their competence.”); Teague, 999 F.2d at 1382 (denying

reimbursement for private residential treatment and observing that the

private facility's “focus was on behavior management” and that the

private facility “devoted only the same or a little more time to Todd's

educational programming than did the [public] school.”).

Id.

The Fifth Cireuit described the second prong of the test as “necessarily a fact-

intensive inquiry.” Jd. at 301. The Circuit directed the court to consider the extent to

which the services provided by the residential placement fall within the [DEA's

definition of “related services.” Id. This “related services” analysis should inform

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other factors a court may consider in determining whether the placement is primarily

oriented toward enabling a child to obtain an education. Jd. Such factors include, but

are not limited to: “whether the child was placed at the facility for educational reasons

and whether the child's progress at the facility is primarily judged by educational

achievement.” The Fifth Cireuit declared:

If, upon analysis of the services as a whole, the court determines that

the residential placement is primarily oriented toward enabling the

child to obtain an education, the court must then examine each

constituent part of the placement to weed out inappropriate treatments

from the appropriate (and therefore reimbursable) ones. In other words,

a finding that a particular private placement is appropriate under IDEA

does not mean that all treatments received there are per se

reimbursable; rather, reimbursement is permitted only for treatments

that are related services as defined by the IDEA at 20 U.S.C. § 1401(22).

Id.

Here, again, the record is not sufficiently developed to determine whether

Plaintiffs proposed residential placement, the Monarch Center for Autism, meets the

standard articulated by the Fifth Circuit. (Doc. 30, p. 5). The record does not contain

sufficient information regarding Monarch or its services such that the Court can

determine whether its primary purpose is educational or the extent to which

Monarch’s services fall within the IDEA's definition of “related services.”

Additionally, the Court is unable to examine “each constituent part of the placement

to weed out inappropriate treatments from the appropriate (and therefore

reunbursable) ones.” See Richardson Indep. Sch. Dist., 580 F.8d 286, 301

(5th Cir. 2009).

Accordingly, the Court finds that Plaintiff cannot bear his burden of proving

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that he is substantially likely to succeed on the merits in obtaining residential

placement for J.A. And because Plaintiffs claim to injunctive relief fails at the first

step of the analysis, the Court need not address the other elements necessary for

granting a preliminary injunction. See Roho, Inc. v. Marquis, 902 F.2d 356, 361

(5th Cir, 1990).4

The Court also finds it appropriate to consider appointing counsel to represent

Plaintiff from the Court’s Civil Pro Bono Panel.5 Following the Court’s ruling on the

appointment of counsel, the Court shall immediately refer this matter to the

Magistrate Judge for the issuance of an expedited Scheduling Order.

V. CONCLUSION

Accordingly,

IT IS ORDERED that Plaintiffs Motion for Preliminary Injunction

(Doc. 22) is DENIED.

IT IS FURTHER ORDERED that the parties shall each file a Memorandum

within 14 days of the issuance of this Ruling and Order, regarding the

appropriateness of appointing counsel to represent Plaintiff and his minor son in this

matter. The Memoranda shall not exceed eight pages.

bears reminding that a preliminary injunction is an “extraordinary and drastic remedy.”

Munaf v. Geren, 553 U.S. 674, 689-90 (2008). Indeed, Plaintiff may succeed at a later stage

of the litigation.

5 See https://www.lamd.uscourts.gov/civil-pro-bono-pilot-program (last visited Mar. 28, 2022).

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IT IS FURTHER ORDERED that, following the Court’s ruling regarding the

appointment of counsel, this matter shall be immediately REFERRED to the

Magistrate Judge for the issuance of an expedited Scheduling Order.

Baton Rouge, Louisiana, this 27 “of March, 2022

Ae Aas

fo

JUDGE BRIAN 4 ( JAC) SON

UNITED STATESSBISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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