The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR STAY PUT
Plaintiff Marcus I. is an autistic child receiving
services from the State of Hawaii under the Individuals with Disabilities Education Act ("IDEA"). Marcus's mother, proceeding on Marcus's behalf, and Defendant Department of Education ("DOE") have had disputes over whether the DOE has offered Marcus a Free Appropriate Public Education ("FAPE") in Individualized Education Plans ("IEPs") covering several school years. The present lawsuit concerns the IEP dated May 5, 2008, and the IEP dated May 4 and 12, 2009, for the 2008-09 and 2009-10 school years, respectively. Now before the court is Marcus's mother's motion for a stay-put order authorizing Marcus to stay at his current private school at DOE expense through completion of the present litigation. This court, relying on the Ninth Circuit's decision in a related case stating that Marcus is entitled to stay put at Loveland Academy during the pendency of this action, GRANTS the Motion for Stay Put (the "Motion").
"The IDEA is a comprehensive educational scheme, conferring on disabled students a substantive right to public education." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing Honig v. Doe, 484 U.S. 305, 310 (1988)). The IDEA ensures that "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). To provide a FAPE in compliance with the IDEA, a state educational agency receiving federal funds must evaluate a student, determine whether that student is eligible for special education and services, conduct and implement an IEP, and determine an appropriate educational placement for the student.
When a parent disagrees with the contents of an IEP, the parent may challenge that IEP by demanding an administrative due process hearing. See 20 U.S.C. § 1415(b)(6), (f)(1)(A). A parent may also enroll the child in a private program, and, upon establishing that the public school failed to provide a FAPE, the parent may seek reimbursement. See 20 U.S.C. § 1412(a)(10)(C)(ii). The IDEA also includes a "stay put" provision that permits a child to stay in the child's current educational placement during the pendency of any administrative or judicial proceeding regarding a due process complaint notice. See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a), (d). It is the stay-put provision that is in issue in the Motion.
III. FACTUAL AND PROCEDURAL BACKGROUND.
The court incorporates and adopts the extensive factual background laid out in its Order Partially Vacating and Remanding the Hearings Officer's June 9, 2010, Decision, ECF No. 34. For the convenience of the parties, the court highlights the pertinent factual information and supplements the procedural background as follows.
At the time Marcus's mother filed the Complaint in this action, Marcus was sixteen years old. Compl. ¶ 5, ECF No. 1. Administrative Record ("AR") at 96.*fn1 Marcus attends Loveland Academy, a private institution, on Oahu. Id. at 94, 96. Marcus lives at a residential facility run by Loveland Academy. Id. at 96.
In a Settlement Agreement dated August 9, 2006, the parties agreed to place Marcus at Loveland Academy for the 2006-07 school year. AR at 97. In an earlier case before Judge David Ezra, Marcus's mother had challenged Marcus's two 2007-08 IEPs, which had placed Marcus at a residential facility in Texas. Id. The Hearings Officer found in favor of the DOE. That ruling was upheld by Judge Ezra, who determined that the IEPs provided Marcus with a FAPE. See Marcus I. ex rel. Karen I. v. Dep't of Educ., Civ. No. 08-00491 DAE/BMK, 2009 WL 3378589, at *9-10 (D. Haw. Oct. 21, 2009).
Marcus's mother appealed Judge Ezra's ruling. The Ninth Circuit held that the issue was moot, because the DOE was no longer seeking to place Marcus at the Texas facility. In its unpublished Memorandum of May 23, 2011, the Ninth Circuit stated, "The only issue in this case, whether Five Oaks Achievement Center (Five Oaks) was the least restrictive environment for Marcus, is moot." Marcus I. ex rel. Karen I. v. Dep't of Educ., No. 09-17606, 434 Fed. Appx. 600, 2011 WL 1979502, at *1 (9th Cir. 2011). Regarding the issue of stay-put, the Ninth Circuit said:
Marcus argues that the case is not moot because dismissing the appeal would have collateral legal consequences for Marcus, namely, it would affect whether the DOE allows him to remain at Loveland pursuant to the stay-put provision. The DOE stated at oral argument that if this appeal is dismissed, Marcus' stay-put will move to Baldwin High School.
This line of reasoning lacks merit as a basis for finding the case not moot for two reasons. First, the stay-put provision is designed to allow a child to remain in an educational institution pending litigation.
20 U.S.C. § 1415(j). It does not guarantee a child the right to remain in any particular institution once proceedings have concluded. Thus, the fact that dismissing an appeal as moot would remove a child from the protection of the stay-put provision cannot in and of itself create a live ...