United States District Court, D. Colorado
TEMPORARY RESTRAINING ORDER
William J. Martinez United States District Judge
Plaintiff
Michael Smith (“Smith”), proceeding pro
se, files this lawsuit against Cheyenne Mountain School
District 12 (“School District”) for the sole
purpose of obtaining an injunction under 20 U.S.C. §
1415(j) requiring the School District to continue providing
normal educational services to his eleven-year-old autistic
son, R.S., while Smith and School District work through a
dispute over R.S.'s placement. Currently before the Court
is Smith's Verified Motion for Temporary Restraining
Order and Preliminary Injunction. (ECF No. 3.) As to the TRO
portion of this motion, the Court finds and concludes as
follows.
“A
party seeking a temporary restraining order or preliminary
injunction must show (1) a substantial likelihood that the
movant eventually will prevail on the merits; (2) that the
movant will suffer irreparable injury unless the injunction
issues; (3) that the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause
the opposing party; and (4) that the injunction, if issued,
would not be adverse to the public interest.” NRC
Broad. Inc. v. Cool Radio, LLC, 2009 WL 2965279, at *1
(D. Colo. Sept. 14, 2009).
On this
record, the Court finds a substantial likelihood of success
on the merits. This case arises under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq. Smith alleges that R.S.
has an IDEA-mandated individualized education plan
(“IEP”) which specifies a school within the
School District known as “The Vanguard School” as
R.S.'s “School of Attendance.” (¶
6.)[1]
On May 30, 2019, Smith received an e-mail from the
“Executive Director” of The Vanguard School
announcing that the school would not hire a paraprofessional
to work with R.S. and so R.S.'s enrollment was denied for
the 2019-20 school year. (¶ 7.) IDEA requires states to
create and administer formal procedures for resolving these
sorts of disputes. See 20 U.S.C. § 1415. Smith,
apparently invoking these procedures, “filed a Due
Process Complaint with the Colorado Department of
Education” on August 7, 2019. (¶ 10.) Having done
so, 20 U.S.C. § 1415(j) comes into play, which requires
that “the child shall remain in [his or her]
then-current educational placement” “during the
pendency of any [administrative] proceedings.”
R.S.
was supposed to begin sixth grade at The Vanguard School on
August 14, 2019. (¶ 14.) “On those days when R.S.
has been dropped off at The Vanguard School, R.S. has been
confined to an office, separated from his peers, and provided
with no educational services. During this time, R.S. has not
been allowed into a classroom, has not been allowed to
interact with his peers, and has not even been afforded a
lunch or recess break.” (¶ 15.)
The
dispute, apparently, is whether The Vanguard School's
announcement in the May 2019 e-mail denying R.S.'s
enrollment means that R.S. has no “then-current
educational placement” under § 1415(j), and so The
Vanguard School has no obligation under that statute; or, on
the other hand, whether The Vanguard School's designation
as R.S.'s “School of Attendance” in his IEP
takes precedence until the IEP is amended. On this highly
abbreviated record, the Court finds that Smith is likely to
prevail on his argument that the IEP continues to control.
Thus, per § 1415(j), The Vanguard School must continue
to educate R.S. according to his IEP while the Due Process
Complaint works its way through the Colorado Department of
Education procedures.
Turning
to irreparable harm, the Court disagrees with Smith's
argument that irreparable harm should be presumed.
(See ECF No. 3 at 6-7.) “Courts may presume
irreparable harm only when a party is seeking an injunction
under a statute that mandates injunctive relief as a
remedy for a violation of the statute.” First
Western Capital Mgmt. Co. v. Malamed, 874 F.3d 1136,
1140 (10th Cir. 2017) (emphasis in original). Section 1415(j)
does not mandate injunctive relief as a remedy for violation.
However, the Court finds that Smith's allegations of
R.S.'s treatment at The Vanguard School-i.e.,
being isolated for the entire school day, with no educational
services- could create lasting emotional trauma, with effects
on R.S. himself and on Smith. Accordingly, irreparable harm
has been satisfied on this abbreviated record.
The
Court additionally finds that the irreparable harm to R.S.
and Smith outweighs any harm to the School District, at least
in the near-term contemplated by a TRO, given that The
Vanguard School has been educating R.S. for many years before
this dispute. (See ¶ 9.)
Finally,
a TRO would not be adverse to the public interest. To the
contrary, it is in the public interest to ensure that
IDEA's policies are carried out.
To
obtain a temporary restraining order before the party to be
restrained has an opportunity to appear and respond, a
plaintiff must present
(A) specific facts in an affidavit or a verified complaint
clearly show[ing] that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse
party can be heard in opposition; and
(B) the movant's attorney['s] certifi[cation] in
writing [regarding] any efforts made to give notice and the
reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). As for requirement “A,
” Smith provides a verified complaint on which the
Court has relied to discern the facts meriting a TRO. The
Court further finds that Smith has made a sufficient showing
that a TRO should issue without notice, so that R.S. may
return to the general student population as swiftly as
possible. As for requirement “B, ” Smith himself
provides the required certificate, explaining that immediate
action is needed due to R.S.'s current treatment at The
Vanguard School (ECF No. 3 at 11-12.)
Smith
has also complied with D.C.COLO.LCivR 65.1, describing his
efforts to communicate with the School ...