Appeal from denial of a preliminary injunction ordering public reimbursement of private school tuition for handicapped student. The United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, held that status quo provision of the Education of the Handicapped Act did not require continued public funding when Board of Education had neither agreed to nor been ordered to provide the private school placement at time the complaint proceeding regarding recommended placement of child in public school commenced. Modified in part and affirmed.
LUMBARD, OAKES, and WINTER,
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),*fn1 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.*fn2
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 reivew of final administrative decisions, id. § (e) (2).*fn3 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).*fn4 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).
Under the statute, the inquiry focuses on identifying "the then current educational placement,"*fn5 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.
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.*fn6 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, 67 L. Ed. 2d 334, 101 S. Ct. 1348 (1981); Monahan, 491 F. Supp. at 1089-90.
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.*fn7 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."
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.*fn8
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 ...