Also, the very reasons cited by CPSB as justifying Jonathan's transfer, including the highly structured and supervised nature of the program at Bethune, demonstrate that Bethune is a more restrictive environment. Under the state's own implementing regulations, a re-evaluation normally should have been completed prior to the transfer.
It therefore would have been proper procedure for CPSB to order a re-evaluation in May, 1991 (by which time Youree administrators had clearly determined that placement at Bethune was appropriate). If as a result of the re-evaluation a change in placement had been proposed, Jonathan's parents, upon receiving appropriate notice, would have had the option of requesting a due process hearing. Instead of proceeding in this fashion, CPSB first attempted to obtain parental consent to the transfer by scheduling an IEP meeting to discuss the same in May, 1991. After Jonathan's mother indicated her disapproval of a transfer, Youree's screening committee forwarded correspondence to Jonathan's parents on June 5, 1991 stating that the committee had decided that "Jonathan not be placed at Youree Drive in the 1991-92 school year." Under Department of Education regulations, however, the Committee did not have the authority to make such a decision on its own. Perhaps in recognition of this fact, CPSB allowed Jonathan to return to Youree at the start in the Fall of 1991, although not before Youree held a placement review meeting on August 21, 1991 and again recommended that Jonathan be placed at Bethune. Finally, on October 21, 1991, at the conclusion of a disciplinary hearing pertaining to Jonathan's last suspension, Youree administrators again recommended change in placement.
Nevertheless, despite attempts to persuade the parents to accept a change to a more restrictive environment in a manner not consistent with either the spirit or letter of the state regulations, CPSB did not did not actually effectuate the change in placement until November 11, 1991, when it obtained a temporary restraining order from this Court (per Judge Politz) enjoining Jonathan from attending Youree during the pendency of these proceedings and directing that Jonathan be temporarily placed at Bethune. The temporary restraining order, thereafter made a preliminary injunction by the consent of the parties, was obtained upon CPSB's showing that Jonathan's continued presence at Youree posed a severe threat of imminent danger to himself or others. See Honig v. Doe, 484 U.S. 305, 327, 108 S. Ct. 592, 606, 98 L. Ed. 2d 686 (1988).
After the injunction was in place, CPSB completed a re-evaluation that supported the change in placement and revised Jonathan's IEP. Plaintiffs were then afforded a due process hearing (albeit after the change in placement due to the injunction) at which time, as previously noted, CPSB provided convincing support for its placement determination.
While the Court agrees with plaintiffs that CPSB violated Regulation § 458 by not ordering a re-evaluation in connection with the proposed change to a more restrictive environment, that violation became a moot point due to a combination of three factors: (1) exigent circumstances required the issuance of the injunction and Jonathan's interim placement at Bethune; (2) a re-evaluation was subsequently completed; and (3) CPSB proved by a preponderance of the evidence at the due process hearing that the change in placement was in Jonathan's best interests. Under these unique circumstances, CPSB's failure to adhere to the requirements of § 458 did not cause injury to Jonathan or impede his right to receive a free appropriate education.
(3) 20 U.S.C. § 1415
Plaintiffs also argue that Jonathan's transfer from Youree to Bethune constituted a change in "educational placement" under IDEA, 20 U.S.C. § 1415, such that CPSB was required to advise plaintiffs of their right to a due process hearing prior to the transfer. A mere transfer from one school to another is not necessarily a change in educational placement for the purposes of this statute. Weil v. Board of Elementary and Secondary Education, 931 F.2d 1069 (5th Cir. 1991). "An educational placement...is not changed unless a fundamental change in, or elimination of, a basic element of the educational program has occurred." Sherri A.D. v. Kirby, 975 F.2d 193, 207 (5th Cir. 1992). For much the same reasons used in determining that Bethune is a more restrictive environment than Youree, the Court agrees that the move from Youree to Bethune was a change in educational placement that required CPSB to advise the plaintiffs of their right to a due process hearing under 20 U.S.C. § 1415.
Although the parents ultimately learned of their rights in that regard after they retained counsel, they were not so advised on the multiple occasions when CPSB proposed a change in placement in the Spring and Fall of 1991. As discussed in connection with plaintiffs' claim under § 458 of the state regulations, however, the superseding effect of the injunction entitled CPSB to change Jonathan's placement prior to the due process hearing, and the fact that such a due process hearing was held subsequently renders the matter moot.
(4) Impact of Procedural Violations
Plaintiffs also argue that significant violations of IDEA's procedural requirements had the cumulative effect depriving Jonathan of a free appropriate education. As a general rule, the proposition that serious procedural violations can result in such a deprivation is undoubtedly correct. See Board of Education v. Rowley, supra, 102 S. Ct. at 3050 (emphasizing importance of procedural compliance). Nevertheless, the procedural violations which occurred in this case did not alter either the quality of Jonathan's education or the ultimate placement decision. As the Supreme Court observed in Rowley, one of the main purposes of IDEA's procedural requirements is to insure parental participation in the formulation of the IEP and any placement decision, and even though proper procedures were not always followed, Jonathan's parents were afforded the opportunity for full participation in those matters. Jonathan thus was not denied a free appropriate education because of any of the procedural irregularities heretofore discussed.
(V) ATTORNEY'S FEES
Plaintiffs have prevailed in their claim under the Rehabilitation Act by establishing that Jonathan was subjected to disciplinary suspensions for reasons related to his disability. Their claim for compensatory relief is rejected, but they are entitled to declaratory relief. Plaintiffs have established procedural violations of IDEA, although under the facts presented those violations do not entitle them to affirmative relief. Plaintiffs' substantive claim for relief under IDEA regarding the adequacy of Jonathan's IEP has been denied. Finally, plaintiffs claims under § 1983 have been rejected.
Under these circumstances, the plaintiffs are "prevailing parties" for the purposes of the Rehabilitation Act, and are entitled to recover attorney's fees pursuant to 29 U.S.C. § 794a(b). Because plaintiffs have not established a right to affirmative relief under IDEA, they are not prevailing parties for the purposes of the attorney's fees provision of that statute, 20 U.S.C. § 1415(e)(4)(b). Accordingly, the Court concludes that plaintiffs are entitled to an award of attorney's fees and costs limited to the prosection of their claim that CPSB improperly imposed disciplinary suspensions upon Jonathan for reasons related to his exceptionality. Because plaintiffs could not file suit on this claim without first exhausting their administrative remedies under IDEA, the fee award should include attorney time and expenses incurred with respect to that issue during the administrative hearing process.
By separate order, the Court will schedule such further proceedings as may be necessary to determine the amount of the attorney's fees award.
ACCORDINGLY, and as set forth in the separate judgment issued this date, there will be judgment in favor of plaintiffs under Section 504 of the Rehabilitation Act, declaring that defendants improperly suspended Jonathan G. from Youree Drive Middle School for reasons related to his exceptionality and directing that all disciplinary records pertaining to all such suspensions in 1990 and 1991 be expunged; there will be judgment in favor of defendants as to all claims asserted by the plaintiffs under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., and as to all claims asserted under 42 U.S.C. § 1983; and there will be judgment in favor of plaintiffs and against defendants for reasonable attorney's fees and costs incurred in prosecution of their claim under Section 504 of the Rehabilitation Act, the amount of said award to be determined pursuant to further proceedings of this Court. Plaintiffs are ordered to file a motion to fix attorney's fees, together with an itemized affidavit of the time and expense incurred, within 30 days.
Thus done and signed at Shreveport, Louisiana, this 19th day of December, 1994.
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE