Peninsula School District v. K.P.

— 1 — — 2 — — 3 — — 4 — UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT TACOMA — 6 — — 7 — PENINSULA SCHOOL DISTRICT, CASE NO. 3:23-cv-05743-DGE — 8 — Plaintiff, ORDER ON DEFENDANTS’ 9 v. MOTION FOR STAY PUT (DKT. NO. 9) 10 K.P. and M.P. on behalf of their minor child, A.P., — 11 — Defendants. — 12 — — 13 — I INTRODUCTION — 14 — Before the Court is a motion for stay put by Defendants K.P. and M.P. (“Parents”), on — 15 — behalf of their child, A.P. (Dkt. No. 9.) For the reasons set forth below, the Court GRANTS — 16 — Parents’ motion. — 17 — II BACKGROUND — 18 — The present case arises from a special education due process hearing in which an — 19 — Administrative Law Judge (“ALJ”) held the Peninsula School District deprived A.P. of a free — 20 — appropriate public education (“FAPE”) in violation of the Individuals with Disabilities Education — 21 — Act (“IDEA”) by, inter alia, “failing to provide [A.P.] with an evidence-based, multi-sensory, — 22 — structured literacy program for students with dyslexia and implement it with fidelity.” (Dkt. No. — 23 — 1-2 at 55.) — 24 — 1 Included in the relief ordered by the ALJ was a directive that A.P.’s individualized 2 education program (“IEP”) for the 2023–24 school year “shall expressly require the District to 3 implement, with fidelity, an evidence-based structured literacy program designed for students 4 with dyslexia [] for the Student’s [specifically designed instruction (‘SDI’)] in reading.” (Id. at 5 59.) The ALJ stressed that the “program shall be delivered in the scope and sequence intended 6 by its designers, including use of the program’s assessments and progress monitoring tools.” 7 (Id.) As the ALJ explained, the manner of implementation is important because “‘[t]he provision 8 of multiple methodologies throughout the day without clear coordination and structure’” can lead 9 to “‘confusion for a student and be detrimental for a student with dyslexia.’” (Id. at 20.) The 10 ALJ further required that A.P.’s IEP “specify a mechanism for regular communication” at least 11 every two weeks “between [A.P.’s] general education teacher(s), special education teacher, and 12 private tutor (if any) to ensure that, to the extent practicable, the [A.P.’s] literacy education is 13 delivered consistently with the elements of structured literacy.” (Id. at 59–60.) 14 An evidence-based structured literacy program designed for students with dyslexia was 15 therefore a central component of the ALJ’s order. One such program the parties agree meets this 16 requirement is “Seeing Stars.” (Dkt. Nos. 9 at 4; 14 at 3; 16 at 3.) Indeed, the ALJ found that in 17 March of 2023, a few months prior to the issuance of the ALJ’s order, A.P.’s teacher “began 18 implementing the Seeing Stars curriculum” with A.P. (Dkt. No. 1-2 at 42.) The District 19 represents that it continues to use Seeing Stars in providing reading instruction to A.P. (Dkt. No. 20 15 at 4–5.) 21 Following the ALJ’s order, the District appealed to this Court. (Dkt. No. 1.) Briefing is 22 set to occur in early 2024. (Dkt. No. 21.) Parents bring the instant motion for stay put to ask that — 23 — — 24 — 1 aspects of the ALJ’s order related to the structured literacy program be implemented during the 2 pendency of the District’s appeal. (Dkt. No. 9.) 3 III LEGAL STANDARD 4 The IDEA’s “stay put” provision requires that during the pendency of IDEA proceedings, 5 “unless the State or local educational agency and the parents otherwise agree, the child shall 6 remain in the then-current educational placement of the child.” 20 U.S.C. § 1415 (j). “[T]hen7 current educational placement” typically refers to the placement described in the child’s last 8 implemented IEP as of the date the parents commenced IDEA proceedings. Johnson v. Special 9 Educ. Hearing Off., 287 F.3d 1176 , 1180 (9th Cir. 2002); E.M. v. Poway Unified Sch. Dist., 2019 10 WL 2918186 , at *2 (S.D. Cal. July 8, 2019). However, when an ALJ orders that the parents’ 11 preferred placement is the appropriate placement for a student, the ALJ-ordered placement 12 serves as the student’s “educational placement” under the stay put provision. See, e.g., K.D. v. 13 Department of Educ., Hawaii, 665 F.3d 1110, 1118 (9th Cir. 2011); Clovis Unified Sch. Dist. v. 14 California Off. of Admin. Hearings, 903 F.2d 635 , 641 (9th Cir. 1990); K.K. v. Hart, 2022 WL 15 2162016, at *4 (C.D. Cal. Apr. 20, 2022); Department of Educ., Hawaii v. C.B., 2012 WL 16 1081073, at *4 (D. Haw. Mar. 29, 2012). 17 IV DISCUSSION 18 Parents’ motion for stay put contends that, “[i]n direct violation of the ALJ’s order, the 19 District is refusing” to implement an “evidence-based, structured literacy program designed for 20 students with dyslexia” to A.P., and to document the implementation of the program in A.P.’s 21 IEP. (Dkt. No. 9 at 1–2.) Accordingly, Parents ask the Court to direct the District to comply 22 with this aspect of the ALJ’s order pending the District’s appeal, contending the ALJ’s order 23 represents A.P.’s “educational placement” under the IDEA’s stay put provision. (Id. at 10–11.) — 24 — 1 The District opposes Parents’ motion on two bases. First, the District asserts the ALJ’s 2 order requiring implementation and documentation of a structured literacy program does not 3 represent a change to A.P.’s “educational placement” under the stay put provision, and, 4 therefore, the stay put provision does not apply. (Dkt. No. 14 at 7.) Second, the District argues 5 that pursuant to an agreement with Parents, it is already implementing the portion of the ALJ’s 6 order Parents now seek to enforce, such that there is nothing additional for the District to do. (Id. 7 at 10.) The Court addresses each argument in turn. 8 A. A.P.’s “Educational Placement” Under Stay Put 9 The District contends the stay put provision does not require implementation of the ALJ’s 10 order because, “[o]n the face of the law, stay put applies only to changes to a student’s 11 ‘educational placement,’ and not other types of changes to a student’s program.” (Id. at 7.) The 12 District effectively urges the Court to find that “educational placement” for purposes of stay put 13 principally encompasses a student’s physical setting or surroundings (e.g., at-home vs. classroom 14 instruction, or 1:1 vs. group instruction) and would not reach a structured literacy program. (Id. 15 at 7–9). According to the District, a structed literacy program is not “the type of ‘significant 16 change’” necessary to meet the term “educational placement.” (Id. at 9.) 17 The Court finds this position overly restrictive. First, while a student’s educational 18 placement under stay put often encompasses the physical setting in which the instruction takes 19 place, the definition of an educational placement is not so limited. In fact, the Ninth Circuit has 20 indicated that a change in “educational placement” under the stay put provision can occur when 21 there is “a significant change in the student’s program” or “model of education,” even if “the 22 student remains in the same setting.” N.D. v. Hawaii Dep’t of Educ., 600 F.3d 1104 , 1116–17 23 (9th Cir. 2010). Second, as described in the ALJ’s findings, the structured literacy program in — 24 — 1 this case is a significant change in A.P.’s model of education. This is because it is necessary “to 2 access her education”; “must . . . address . . . language needs through explicit, direct instruction”; 3 “must cover the five general parts of reading”; “must also be multisensory, meaning the 4 instruction is interactive and relies on a student using multiple modes of learning”; must provide 5 “repeated practice to learn skills and teachers use controlled, decodable text to enhance a 6 student’s skills”; and must be “implemented as it is intended to be implemented.” (Dkt. No. 1-2 7 at 19–20.) Accordingly, the Court concludes that the writing program ordered by the ALJ 8 constitutes an “educational placement” under the stay put provision. 9 The District also suggests that an ALJ-ordered placement must represent a change from a 10 student’s prior educational placement in order for stay put to apply. (Dkt. No. 14 at 9.) Because 11 A.P. was already receiving instruction pursuant to Seeing Stars a few months prior to the ALJ’s 12 order, the District contends the ALJ’s order requiring implementation of a structured literacy 13 program did not actually “require any []change to the quantity, location, or nature of the 14 District’s services to A.P” and, therefore, stay put should not apply. (Id.) 15 Again, the Court disagrees. As an initial matter, the Court doubts the District’s position 16 that an ALJ-ordered placement must change a student’s placement in order for the ALJ’s order to 17 be enforceable under stay put, particularly given that a purpose of the stay put provision was 18 maintenance of the status quo and stability during the pendency of IDEA proceedings. See Van 19 Scoy v. San Luis Coastal Unified Sch. Dist., 353 F. Supp. 2d 1083, 1086 (C.D. Cal. 2005); 20 Termine v. William S. Hart Union High Sch. Dist., 219 F. Supp. 2d 1049, 1059 (C.D. Cal. 2002). 21 Indeed, courts have routinely found an ALJ-ordered placement to constitute a student’s 22 placement for purposes of stay put when, as of the date of the ALJ’s order, the student was 23 already enrolled in the ALJ-ordered placement. See, e.g., Clovis, 903 F.2d at 641; Department of — 24 — 1 Educ., Hawaii v. Ria L., 2012 WL 5383543 , at *2–5 (D. Haw. Oct. 30, 2012); Ashland Sch. Dist. 2 v. V.M., 494 F. Supp. 2d 1180 , 1181–82 (D. Ore. July 5, 2007). 3 But even assuming that an ALJ-ordered placement may only constitute a student’s 4 educational placement under stay put when it represents a change to the student’s prior 5 placement, the Court would find this requirement satisfied. Absent the ALJ’s order, A.P.’s 6 “then-current educational placement” under stay put would be the placement reflected in her IEP 7 as of the date Parents filed their due process complaint. See Johnson, 287 F.3d at 1180; E.M., — 8 — 2019 WL 2918186 , at *2. Parents filed their complaint December 9, 2022. (Dkt. No. 1-2 at 2.) 9 At that time, A.P.’s IEP did not reflect the placement required by the ALJ’s order. Most 10 critically, the IEP did not call for the use of a structured literacy program—such as Seeing 11 Stars—with fidelity. (Id. at 46–50.) Moreover, the ALJ’s order does not indicate the District 12 ever adopted a new IEP incorporating a structured literacy program with fidelity during the 13 2022-2023 school year. (Id. at 55.) Accordingly, the ALJ’s order requiring implementation of a 14 structured literacy program necessarily changed A.P.’s educational placement under stay put. 15 That the school has used Seeing Stars to some degree in recent months is irrelevant to that 16 determination. 17 B. The District’s Compliance with the ALJ’s Order 18 The District next argues that “[a]fter entry of the ALJ’s decision, Parents agreed” at a 19 September 14, 2023 IEP meeting “to amend A.P.’s IEP to document the implementation of 20 Seeing Stars for A.P.’s reading instruction” (Dkt. No. 14 at 11), such that the September IEP is 21 now A.P.’s stay put placement (id. at 10). The District contends that because “the District has 22 formally adopted and continues to implement” Seeing Stars, which is “the specific type of — 23 — — 24 — 1 reading program contemplated in the ALJ’s decision,” there is nothing more for the District to 2 do. (Id. at 11–12.) The Court disagrees. 3 First, the September IEP does not adhere to the requirements of the ALJ’s order. The 4 closest the amendment gets to satisfying the ALJ’s directives is a cursory statement that 5 “Reading SDI will be 1:1 with staff trained in Seeing Stars.” (Dkt. No. 15 at 24.) This is not 6 enough. Most notably absent from the amendment is any requirement, as was ordered by the 7 ALJ, that the District implement the Seeing Stars or other structured literacy program “with 8 fidelity” and “in the scope and sequence intended by its designers.” (Dkt. No. 1-2 at 59.) And 9 read literally, the September IEP would allow staff to instruct A.P. using any program, so long as 10 the staff members themselves were at some point “trained in Seeing Stars.” (Dkt. No. 15 at 24.) 11 Moreover, the District’s own summary of the September IEP meeting states that it “considered 12 and rejected” implementing the ALJ’s order (id. at 27), further belying the District’s assertion 13 that it has “formally adopted and continues to implement the specific type of reading program 14 contemplated in the ALJ’s decision.” (Dkt. No. 14 at 11.) 15 Second, the record does not reflect Parents’ agreement with the September IEP. The IEP 16 amendment itself states that signatures of participants—including Parents—“do not constitute 17 agreement or disagreement” with the IEP. (Dkt. No. 15 at 9.) And the “Prior Written Notice” 18 summarizing the September IEP meeting shows the District refused Parents’ request that the 19 ALJ’s order be implemented, again indicating a lack of agreement. (Id. at 28.) Indeed, it would 20 “make[] no sense for [Parents] to have consented” to the September IEP for purposes of stay put, 21 as that amendment represents “a significant reduction in services” compared to the ALJ-ordered 22 placement. K.K., 2022 WL 2162016 , at *5. The Court therefore does not find that the 23 September IEP superseded the ALJ-ordered placement. — 24 — 1 V CONCLUSION 2 In sum, the ALJ-ordered placement constitutes A.P.’s educational placement under the 3 IDEA’s stay put provision. Accordingly, the Court finds and ORDERS that Parents’ motion to 4 stay put (Dkt. No. 9) is GRANTED. The District SHALL schedule an IEP meeting within five 5 (5) days of the issuance of this Order for purposes of amending A.P.’s IEP and implement with 6 fidelity a structured literacy program in the manner ordered by the ALJ (Dkt. No. 1-2 at 59–60). 7 Dated this 29th day of December 2023. — 8 — A — 9 — David G. Estudillo 10 United States District Judge — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —