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Armstrong v. Charlotte County School District


27 IDELR 1035
(M.D., Fla. 1998)
B.A. by and through his parents
Michael ARMSTRONG and

No. 98-38-CIV-FTM-25A

U.S. District Court, Middle District of Florida, Fort Myers Division

March 20, 1998

A School district and the parents of an 11-year-old gifted student with a hearing impairment went to due process over the qualifications of the student's sign language interpreter. The parents claimed the district denied the student a FAPE when it failed to provide an interpreter who signed entirely in Signed Exact English or Signed English. An Administrative Law Judge agreed with the parents, and ordered the district to hire an interpreter who signed only in English. Additionally, the ALJ recommended the district hire a certified interpreter. The Defendants appealed the ALJ's decision. When the district failed to hire a new interpreter, the parents sought an injunction compelling the district to comply with the ALJ's order.
Held: for the parents.
First, the court rejected the district's assertion that injunctive relief was not available under the IDEA. Since the parent's claim was brought under Section 1983, and injunctive relief is permitted under Section 1983, the court determined injunctive relief could be awarded. Next, the court concluded the stay-put provision did not operate to allow the district to refrain from hiring a new interpreter until the appeals process was finished. The stay-put provision cannot be used against parents who prevailed at the administrative level. The district was not entitled to use the stay-put provision as justification for its failure to hire a new interpreter. Turning to the merits of the requested injunction, the court evaluated the four factors and determined they weighed in favor of granting the injunction. The student was suffering an irreversible injury by being assigned an interpreter he was unable to communicate with, and the parents were likely to succeed on the merits of their claim. The burden on the district to hire an interpreter capable of signing in English was not greater than the harm that would result to the student, and the district failed to demonstrate the issuance of the injunction would frustrate any public interest.

Based on these findings, the court granted the requested injunction.

Counsel for Parents: Laura L. Whiteside, Esq., Tampa, Florida
Counsel for District: Usher L. Brown, Esq., Orlando, Florida
HENRY LEE ADAMS, Jr., United States District Judge
Before the Court is Plaintiff's Motion for Preliminary Injunction (Dkts. 2,3), and Defendant's Memorandum in opposition (Dkts 19, 21). The Court heard oral argument on February 27, 1998. Having reviewed said motion and response, the argument of counsel, and otherwise being fully advised, the Court hereby grants Plaintiff's Motion for Preliminary Injunction.
1. Facts1
B.A. is an eleven year old hearing-impaired child. He is enrolled at Port Charlotte Middle School in a gifted sixth grade program. B.A.'s parents, Michael and Linda Armstrong, have kept him from attending school since approximately January 5, 1998, based on the fact that B.A.'s classroom sign language interpreter provided by Charlotte County School Board ("School Board") does not sign entirely in his primary language, Signed Exact English, or its derivative, Signed English. Because of the language discrepancy, B.A. apparently has some difficulty understanding what transpires in the classroom. The Armstrongs brought an Individuals with Disabilities in Education Act ("IDEA") action before an Administrative Law Judge ("ALJ") of the Florida Division of Administrative Hearings to determine: "Whether the Charlotte County School Board is providing [B.A.], a gifted, hearing-impaired 6th grader, with a free appropriate public education?"

The ALJ in his Final Order, dated December 30, 1997, ordered the School Board to "provide [B.A.] with another educational interpreter who is capable of interpreting and signing solely in English." (Dkt. 1, Exh. A at 30). The ALJ added that "[w]hile it may prove difficult, in selecting another interpreter, the School Board should make the effort to obtain an interpreter who is certified at the EIE-3 level." id. On January 20, 1998, the Armstrongs filed this action to enforce the part of the ALJ's decision requiring the School Board to obtain another interpreter for B.A. Shortly thereafter the School Board filed an action challenging the ALJ's decision. (See 98-26-CIV-FTM-25D) As of this Court's February 27, 1998, hearing, the School Board has not obtained a new interpreter for B.A., nor have B.A.'s parents returned him to school

A. Standard on Preliminary Injunction
To prevail on a preliminary injunction, the plaintiff mush show: (1) a likelihood of success on the merits; (2) irreparable injury; (3) potential harm to the opposing party if the order is issued; and (4) the public interest would not be disserved by the grant of a preliminary injunction. West Point-Pepperell, Inc. v Donovan, 689 G.2d 950, 956 (11th Cir. 1982); Local Rule 4.05(b)(4).
B. Individuals with Disabilities Act and Section 1983
1. Availability of Injunctive Relief
The School Board has made several arguments regarding the validity of the ALJ's order and whether that order may be enforced by injunction; however, the School Board has not discussed whether a prevailing party may receive an injunction to enforce a hearing officer's decision.2 See 20 U.S.C. 1415(1)(2)(A) ("Any party aggrieved by the findings and decision...shall have the right to bring a civil action...") (emphasis added). Several courts have held that the IDEA does not permit the prevailing party to enforce a favorable decision by injunction, however, a prevailing party may obtain injunctive relief under 42 U.S.C. 1983. See Jeromy H. v. Mt. Lebanon School District, 95 F.3d 272, 279 (3rd cir 1996); Robinson v. Pinderhughus, 810 F.2d, 1270, 1274-75 (4th Cir. 1987). Because B.A. has also brought this action pursuant to Section 1983, the Court finds that an injunction is an available remedy in this case.
2. Stay-Put Provision
The School Board argued at the hearing that pursuant to the stay-put provision contained in the IDEA, the School Board should not be required to provide a new interpreter for B.A. until the resolution of this case and the School Board's appeal in 98-26-CIV-FTM-251). The IDEA's "stay-put provision," 20 USC 1415(j) provides that:
...during the pendency of any proceedings pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, this child shall remain in the then-current placement of such a child...

Courts have held that this provision does not operate against parents who have prevailed in administrative proceedings for at least two reasons. Courts have rationalized that the state administrative hearing in favor of the parents and the child constitutes an "agreement" between a state agency and the parents within the meaning of 1415(j). See J. B. v Killingly, 1997 WL784807, *8-9 (D. Conn 1997); Susquenita Sch. Dist v. Raelee S., 96F 3d 78, 84 (3d Cir 1996). Additionally, because the IDEA was enacted for the benefit of disabled children, the stay-put provision cannot be enforced against prevailing parents and their children. id. Because the Armstrongs prevailed before the Florida ALJ the Court finds the stay-put provision does not prevent the granting of an injunction in this instance.

3. Preliminary Injunction Factors
a. Irreparable Injury
B.A. claims that "the difficulties with his interpreter, along with the significant breech of confidentiality and the hostility that arose as a result of the proceedings has proved to be too hard." and that he is "losing valuable educational opportunity and suffering emotionally." (Dkt. 3 at 21-22) It is unclear from the first and second affidavits of Linda Armstrong who allegedly breached B.A.'s confidentiality and what specifically was revealed. Further, the School Board emphasizes the fact that the Armstrongs are keeping B.A. out of school and causing him to suffer injury. The ALJ found that B.A. was entitled to an SE Interpreter, based on the decision that B.A.'s current interpreter's mode of communication is inadequate for B.A. Thus to the extent that B.A.'s time in school involves an interpreter that does not sign in his primary language, he would suffer the same injury were he to remain in school. The Court finds that B.A. has shown irreparable injury to justify an injunction.
b. Likelihood of Success on the Merits
The parties differ in how they characterize what constitutes "the merits" of this action. Defendants argue that this case concerns strictly whether B.A. is receiving "some educational benefits" and not whether the School board has complied with the Charlotte County Special Programs and Procedures Manual ("SP&P"), a funding document. See Hendry Hudson District Board of Education v. Rowley, 458 U.S. 176, 200 (1982). The Armstrongs, on the other hand, contend that whether B.A. is receiving a free, appropriate public education also includes whether the School Board has complied with its SP&P manual, approved by the Florida Department of Education.

To determine whether B.A. is receiving a free, appropriate public education, this Court must determine: (1) whether the State has complied with the procedures set forth in the IDEA; and (2) whether the IEP developed through the Act's procedures is reasonably calculated to enable the child to receive educational benefits, Rowley, 458 U.S. at 206-207. The IDEA defines "free, appropriate public education" as special education and services that: (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State Education Agency, (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and (D) are provided in conformity with the individualized education program...20 U.S.C. 1401(8) (emphasis added).

B.A.'s IEP required an "educational interpreter." (Affidavits of Linda Armstrong, Exh. 1). The ALJ found that the educational interpreter provided for B.A. was inadequate. The School Board argues that the ALJ's decision, based in part of the SP&P document which discusses the development of "optimum" skills for hearing-impaired students, disregarded Rowley which states that an IEP need only be calculated to provide some educational benefit. Although the ALJ made clear in his findings that B.A. was receiving some educational benefits, he found that the School Board has not complied with the SP&P documents. The ALJ did not disregard the rule of Rowley, however, he merely applied the first prong of the Rowley test to determine that the IEP as implemented did not comport with the standards of the Florida Department of Education as stated in the SP&P documents. The School Board provides no authority to support its position that the SP&p documents cannot be used to determine what constitute "the standards of the State education agency." Therefore the ALJ's application of Rowley to the facts of this case does not "supplant" the IDEA nor the jurisdiction of this Court. The Court finds that B.A. has shown a likelihood of success on the merits of his IDEA claim.

c. Burden on Defendant
The School Board suggests that it will be difficult to find someone "of the qualifications which might be acceptable to the [Armstrongs]." and object on the grounds that the ALJ's order constitutes an interference in the School Board's personnel decision-making (Dkt 19). As the Court reads the ALJ's order, he required the School Board to provide B.A. with "an interpreter who is capable of interpreting and signing solely in English." This appears to be a straightforward directive. The ALJ further suggests that the School Board "should make the effort to obtain an interpreter who is qualified at the EIE-3 level." As the language suggests, this is not a directive, but a suggestion. Thus it would appear that, to comply with the order, the School Board needs to identify and employ an SE or SE/SEE interpreter. The ALJ did not require the School Board to hire an EIE-3 certified interpreter. It does not appear that the burden on the School Board in obtaining an English interpreter outweighs the harm to B.A. if an injunction were not issued until the merits of this case have ultimately been decided.
d. Public Interest
The School Board has not identified a public interest that would be frustrated by the granting of a preliminary injunction on this case.
C. ADA and Rehabilitation Act
Because the Court finds that Plaintiff's are entitled to a preliminary injunction under Section 1983 on their IDEA claim, the Court need not consider Plaintiff's ADA and Rehabilitation Act claims at this juncture.
Accordingly, it is ORDERED:

1. Plaintiff's Motion for Preliminary Injunction (Dkts. 2) is GRANTED;

2. Defendant, Charlotte County School Board, is ordered to provide B.A. with an educational interpreter consistent with the ALJ's Final Order directing the same;

3. This Order shall remain in full force and effect until modified by an order resolving the merits of this case, or upon the determination of this case by trial, or by other appropriate order;

4. Defendant's Motion to Dismiss and Amended Motion to dismiss (Dkts. 19, 21) are DENIED.

DONE and ORDERED in Tampa, Florida of this (20th) day of March, 1998



1The relevant facts are detailed in the Administrative Law Judge's Final Order (Dkt. 1, Exh. A, "Preliminary Statement") and are incorporated herein by reference.

2Defendants have argued that B.A. is not the prevailing party, and therefore is not entitled to attorneys fees. The Court finds that the ALJ ordered the School Board to provide the relief B.A. requested, and therefore B.A. is a prevailing party under IDEA.

27 IDELR 1035

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