United States District Court, N.D. Illinois
May 3, 2004.
SANDY KACZMARSKI, as mother and best friend of CODY RODMAN, a minor, Plaintiff,
WHEATON COMMUNITY UNIT SCHOOL DISTRICT #200, et al., Defendants
The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
Sandy Kaczmarski, on behalf of her son, Cody Rodman, has sued Wheaton
Community Unit School District #200 (the "District"), Cody's principal,
Sandy Niemiera, and two other District officials, pursuant to the
Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400,
et seq., challenging her son's removal from Washington Elementary School
("Washington") in Wheaton, Illinois. Cody has been diagnosed as
emotionally disabled and has been receiving special education services
from the District pursuant to the IDEA. Until recently, Cody was allowed
to attend classes at Washington with non-disabled children. However, on
March 26, 2004, Cody was suspended for three days for bringing a weapon
(a letter opener) to school. After Cody served his suspension, the school
informed Kaczmarski that Cody must attend classes in an alternative
setting until the school could assess whether he posed a danger to the
school community. Later, after convening a meeting to discuss Cody's
conduct, District officials determined that Cody should attend classes at
a therapeutic alternative day school. Kaczmarski claims that defendants
did not adhere to the IDEA's procedural safeguards in deciding to remove
Cody from his mainstream classes. Kaczmarski has moved the court for a temporary restraining order,
requesting that the court require defendants to return Cody to Washington
pending an administrative hearing on this dispute. For the reasons stated
below, Kaczmarski's complaint is dismissed without prejudice and her
motion for temporary restraining order is denied.
Cody Rodman is a fifth-grade student who has been diagnosed with
bipolar disorder and attention deficit / hyperactivity disorder (ADHD).
Cody qualifies as "emotionally disabled" under the IDEA and has been
receiving special education services from the District since April of
2002. Pursuant to the IDEA, Cody's parents and school officials developed
an individualized education plan ("IEP") for Cody that provided Cody
counseling support and a "behavior intervention plan" designed to address
potential misbehavior.*fn1 Although Cody was originally required to
attend classes with other learning and emotionally disabled children, the
school returned Cody to a mainstream classroom setting at Washington in
the Fall of 2003.
Cody attended classes at Washington with non-disabled students until
March 26, 2004. On that date, Cody threatened two children with a letter
opener that he had brought to school. When Niemiera intervened and
confiscated the letter opener, Cody allegedly attempted to wrestle the
opener away from her and yelled that he wanted to kill himself and one of
the students he had been accused of threatening.*fn2 As a result of
Cody's conduct, Niemiera suspended Cody for three days. The school sent a letter to Kaczmarski, informing her of the suspension
and stating that "Cody has been referred for a safety evaluation with [a
counselor]. Cody will not be able to return to school until the safety
evaluation has been completed. An alternative to suspension place (sic)
will be offered."
On April 7, 2004, the last day of Cody's suspension,*fn3 Niemiera sent
Kaczmarski a second letter, reiterating that Cody could not return to
school until he completed the safety evaluation. Niemiera's letter
offered that, in the meantime, Kaczmarski could choose between two
"alternative education settings" for Cody: "a therapeutic day school or a
homebound tutor for 10 hours each week." Kaczmarski rejected both options
and insisted that Cody be returned to a mainstream class setting.
However, Kaczmarski allowed Cody to submit to the safety evaluation.
On April 14, 2004, the District sent Kaczmarski a "notification of
conference," indicating that, on April 20, 2004, Cody's IEP Team would
meet to (1) review Cody's IEP, (2) evaluate whether Cody's misconduct was
related to his disability, (3) review Cody's behavior intervention plan,
(4) review Cody's interim alternative educational setting, and (5)
discuss Cody's safety evaluation. Kaczmarski's husband attended the April
20, 2004 meeting along with the rest of the IEP Team. At the IEP meeting,
the school members of the IEP team determined that the March 26 incident
was a manifestation of Cody's emotional disability and that Cody's
placement should be changed to a therapeutic alternative day school.
Kaczmarski disagreed with the District's decision and refused to
consent to the new placement. On April 27, 2004, Kaczmarski filed this
lawsuit requesting (a) a judicial declaration that defendants' actions
violated the IDEA, and (b) a preliminary injunction ordering defendants
to return Cody to his mainstream classes pending an expedited due process hearing
by an independent hearing officer.
Kaczmarski has filed an emergency motion for a temporary restraining
order, repeating her complaint's request that the court require
defendants to return Cody to classes at Washington "until such time as an
expedited due process hearing can be held" by an independent hearing
officer. However, because Kaczmarski has not yet exhausted her
administrative remedies, and because the temporary relief Kaczmarski
seeks is both premature and contrary to the express "stay-put" provisions
of the IDEA, Kaczmarski's motion for a TRO is denied.
I. The IDEA
Congress passed the Individuals with Disabilities Education Act "to
assure that all handicapped children have available to them . . . a
free appropriate public education which emphasizes special education
. . . [and] to assure that the rights of handicapped children and
their parents or guardians are protected." 20 U.S.C. § 1400(c).
The primary vehicle for implementing those goals is the "individualized
education program" (IEP), which the IDEA mandates for each disabled
child. The IEP sets out annual and short-term objectives for improvements
in class performance, and describes the class setting and specially
designed instruction that will enable the child to meet those objectives.
20 U.S.C. § 1401(19). The IEP Team must review and, where necessary,
revise the IEP at least once a year to ensure that local agencies tailor
instruction to each child's unique needs. 20 U.S.C. § 1414(a)(5).
The IDEA includes several procedural safeguards to protect the rights
of the disabled child and the parents. Among other protections, the IDEA
sets clear limits on a school's authority to unilaterally discipline a
disabled student for violating school rules. 20 U.S.C. § 1415.
Specifically, the IDEA contemplates the scenario at issue here, allowing school
officials to order a change in a child's educational placement for up to
45 days if the child brings a weapon to school.
20 U.S.C. § 1415(k)(1)(A)(ii); 34 C.F.R. § 300.520(a)(2)(i). The child's
45-day "interim alternative placement" must be determined by the IEP
team.*fn4 34 C.F.R. § 300.522(a). If the parents disagree with the
school's disciplinary action, they may appeal the decision by requesting
an administrative due process hearing. 20 U.S.C. § 1415(k)(6)(A);
34 C.F.R. § 300.525.
The IDEA contains "stay-put" provisions that specify where a child
should attend classes during a pending appeal. Generally, if a parent
appeals a placement decision, the student can remain in his current class
setting until the appeal is resolved. 20 U.S.C. § 14150). However, the
stay-put rule is different in cases where the child has brought a weapon
to school. In cases of weapons possession, the child must remain in the
interim placement until either the appeal is resolved or the 45-day
interim period elapses (whichever comes first). 20 U.S.C. § 1415(k)(7)(A);
34 C.F.R. § 300.526(a). This "weapons exception" to the stay-put rule
allows the school to take appropriate disciplinary action while a more
detailed investigation takes place.
The weapons exception to the IDEA's stay-put provision does not apply,
however, if, in addition to taking disciplinary action, the school also
proposes to change the child's permanent placement. If during the 45-day
interim period, school personnel propose to change the child's permanent
placement, the child must be returned to the "current placement" (i.e. the
place where the child attended classes before he was removed to a
temporary alternative) during the pending appeal.
20 U.S.C. § 1415(k)(7)(B);34C.F.R. § 300.526(b). If school personnel
believe that it is dangerous for the child to be returned to mainstream classes they must request an
expedited due process hearing to determine the danger.
20 U.S.C. § 1415(k)(7)(C); 34 C.F.R. § 300.526(c).
II. Kaczmarski's Emergency Motion For Temporary Restraining Order.
The standard for issuing a temporary restraining order is identical to
the standard for a preliminary injunction. See Bernina of America, Inc.
v. Fashion Fabrics Int'l, Inc., No. 01-C-585, 2001 WL 128164, at *1
(N.D.Ill. Feb.9, 2001). The party seeking the TRO bears the burden of
showing that (1) its case has some likelihood of success on the merits;
(2) no adequate remedy at law exists; and (3) it will suffer irreparable
harm if the injunction is not granted. Ty, Inc. v, Jones Group, Inc.,
237 F.3d 891, 895 (7th Cir. 2001). If the court is satisfied that those
requirements have been met, then it must "consider the irreparable harm
that the nonmoving party will suffer if preliminary relief is granted,
balancing such harm against the irreparable harm the moving party will
suffer if relief is denied." Id. Finally, the court must consider how the
public's interests would be affected by granting or denying the
preliminary relief. Id.
Here, Kaczmarski's TRO motion fails because she cannot demonstrate a
likelihood of success on the merits of her complaint. To the contrary,
(a) Kaczmarski's claim for declaratory judgment is barred for failure to
exhaust her administrative remedies, and (b) her request for interim
relief is both premature and contrary to the "stay-put" provisions of the
Kaczmarski may believe that the District's decision to place Cody in an
interim alternative placement for bringing a weapon to school was
illegal. However, Kaczmarski's complaint for declaratory judgment is
barred because she has not yet sought an administrative review of the
District's decisions. Judicial relief is unavailable under the IDEA until
all administrative procedures have been exhausted. Honig v. Doe,
484 U.S. 305, 326-27 (1988). The statute's exhaustion requirement serves
a number of policy objectives: it allows deference to agency expertise in resolving educational matters; it gives the agency a first opportunity to
correct errors; it presents courts with a more fully developed record;
and it prevents parties from deliberately disregarding the statute's
comprehensive procedures and remedies. See Charlie F. v. Bd. of Educ.,
98 F.3d 989, 992-93 (7th Cir. 1996); N.B. v. Alachua County Sch. Bd.,
84 F.3d 1376, 1378-79 (11th Cir. 1996). If Cody's parents wish to
overturn the District's decision, they may appeal that decision by
calling for an administrative due process hearing. If Cody's parents are
dissatisfied with the administrative ruling, then they may seek relief
from the federal district court. 20 U.S.C. § 1415(i)(2). Until she
exhausts her administrative remedies, however, Kaczmarski's complaint for
declaratory judgment cannot succeed.*fn5
Moreover, because Cody's parents have not appealed the school's
placement decisions, Kaczmarski's request for a TRO is premature and
contrary to the "stay-put" provisions of the IDEA. Documents attached to
Kaczmarski's complaint reflect that the school ordered an immediate
interim change to Cody's placement on April 7, 2004. In an April 7
letter, Niemiera informed Kaczmarski that Cody was not allowed to return
to school because of the March 26 weapon incident, and gave Kaczmarski a
choice of alternative placements. The new placement was to go into effect
once Cody had served his 3-day suspension. Therefore, for purposes of
measuring the 45-day interim period, the court finds that Cody's interim
placement began once his suspension ended on April 7, 2004 at 3:30 PM.
The 45-day interim period will elapse on May 22, 2004.
Kaczmarski's TRO motion is premature because the school's stay-put
obligations have not yet been triggered. The IDEA sets out a clear
procedure for how the parties should proceed. Cody's parents may appeal
the District's placement decisions by requesting a due process hearing. 20 U.S.C. § 1415(k)(6); 34 C.F.R. § 300.525. If Kaczmarski appeals, then
the IDEA's stay-put provisions are implicated. Because the school has
proposed a change to Cody's permanent placement, Cody must be returned to
classes at Washington while the appeal is pending.
20 U.S.C. § 1415(k)(7)(B); 34 C.F.R. § 300.526(b). If the school
maintains that it is too dangerous for Cody to return to his "current
placement," the school may call for an expedited hearing and request an
additional 45-day extension to Cody's interim placement.
20 U.S.C. § 1415(k)(7)(C); 34 C.F.R. § 300.526(c)(3).
The only question remaining is: if the school requests an expedited
hearing on the potential danger of returning Cody to Washington, where
should Cody attend classes while the parties wait for an administrative
decision? The IDEA does not directly answer that question. On the one
hand, the statute's stay-put provisions do not purport to interfere with
a school's ability to place a child in an interim setting for 45 days as
a disciplinary measure. To the contrary, the IDEA expressly preserves the
school's ability to discipline disabled students. However, the statute
clearly contemplates that, in cases of weapons possession, schools may
not keep a child in an alternative placement for more than 45 days
without administrative review of the school's decision. In other words,
while the school may discipline a disabled student for past conduct,
schools may not unilaterally exceed the 45-day limit simply because they
believe the child is dangerous. See Honig v. Doe, 484 U.S. 305, 311
The court, therefore, finds that if Kaczmarski appeals the District's
placement decisions, the District may keep Cody in his alternative
placement so long as it calls for an expedited hearing on whether Cody
poses a danger to the school community. However, the school may not keep
Cody in his alternative placement past the May 22, 2004 deadline unless
it first obtains an administrative ruling allowing it to do so. If the
school does not obtain such a ruling by May 22, Cody must be returned to classes at Washington until the hearing officer rules.
If the District does not abide by those "stay-put" requirements,
Kaczmarski may renew her request for relief from this court. However, at
this time, Kaczmarski's complaint and request for temporary relief are
both premature, and, therefore, her TRO motion must be denied.
For the foregoing reasons, plaintiff's complaint is dismissed without
prejudice and her emergency motion for a temporary restraining order is