United States District Court, E.D. Louisiana
A.S., by and through her Next Friend, DOROTHY S.
VOICES FOR INTERNATIONAL BUSINESS AND EDUCATION, INC.; JOHN WHITE, Louisiana State Superintendent of Education in his official capacity; LOUISIANA DEPARTMENT OF EDUCATION; and LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION
ORDER AND REASONS
D. ENGELHARDT United States District Judge.
before the Court is Plaintiff's “Motion for
Preliminary Injunction” (Rec. Doc. 29), which was taken
under submission on Wednesday, August 2, 2017. The Court has
carefully reviewed the parties' submissions (Rec. Docs.
29, 34, 36, and 43), the record in this matter, and
applicable law. On the present showing made, IT IS ORDERED
that the motion is DENIED WITHOUT PREJUDICE.
the imminent start of the 2017-2018 school term,
parties and counsel have not identified and agreed upon a
reasonable and effective accommodation for A.S.'s
inability to traverse the stairs at International High School
of New Orleans (“IHSNO”) that will not unduly
burden or prejudice A.S., Defendants, and/or the other
students at IHSNO. Although Defendants Voices for
International Business and Education, Inc.
(“VIBE”), Louisiana Department of Education, and
Superintendent of Education John White have recently proposed
that A.S. utilize a Garaventa Stair-Trac
(“Stair-Trac”) portable wheelchair lift to access
the second floor of the school,  it is not apparent to the
Court whether the Stair-Trac lift actually has been purchased
and/or approved by relevant personnel for use by students at
the school. Even so, Plaintiff's memorandum maintains
that the provision of such an instrumentality is legally
insufficient to satisfy Defendants' accessibility
obligations. Moreover, Plaintiff objects to A.S. using the
device because of A.S.'s fear of heights and
falling. Plaintiff also contends the Stair-Trac is
not a viable solution because its use would require that A.S.
be late to or leave early from class and would “put her
at risk of alienating her from other students and becoming
fodder for other students to ostracize or bully her[, which]
would negatively impact her self-worth and
independence.” See Rec. Doc. 43 at 9-10.
forth in her motion for preliminary injunction,
Plaintiff's proposal for the 2017-2018 school year is
that all of A.S.'s classes be relocated to a first floor
classroom, contending that space is available on the first
floor, and that requiring A.S.'s classmates to attend
general education classes on the first floor instead of the
upper floors “is of no consequence to them” given
that “all students change rooms when moving from one
class to another.” See Rec. Doc. 43 at 8.
Plaintiff similarly maintains that “the fact that
[A.S.'s] teachers may need to move from one classroom to
another is also of little consequence” given that
“it simply is not credible to believe that a change in
venue will impair in the least their ability to properly
instruct students.” Id.
presently submitted, Defendants' submissions to the
Court, given their reliance on a prematurity argument and the
provision of a Stair Trac lift, do not adequately apprise the
Court of their position relative to Plaintiff's proposal
that classes for A.S. and her classmates be held solely on
the school's first floor. Given that the information is
likewise not reflected in Plaintiff's submissions, the
Court is unaware of whether Plaintiff and Defendants'
personnel, and/or their counsel, have actually discussed the
viability of Plaintiff's proposal amongst themselves.
Accordingly, IT IS FURTHER ORDERED that:
(1) No later than Friday, August 4, 2017, at 10:00
a.m., counsel for Defendants are to advise the Court
whether the Stair Trac lift has been ordered and, if so, when
it will be delivered. Defendant shall likewise apprise the
Court whether a qualified person has determined that the lift
can safely be used on the IHSNO stairs, as well as its
proposed plans regarding the necessary training of school
staff and actual use of the lift during the school day.
(2) No later than Monday, August 7, 2017, at 3:00
p.m., the parties and counsel are to confer, in good
faith, to determine (a) whether holding all of the classes
that A.S. will attend during the 2017-2018 school year on the
first floor of the school building is a feasible solution to
her inability to climb stairs that will not be unduly
burdensome to Defendants, A.S.'s teachers, and A.S.'s
classmates; and (b) whether any other alternative
arrangement, including the use of a Stair Trac lift for at
least a portion of A.S.'s classes, is feasible and
agreeable to all parties.
(3) No later than Friday, August 4, 2017 at 10:00
a.m., counsel are to advise the Court of the scheduled
date(s) and time(s) for the conference(s) directed in
(4) No later than Wednesday, August 9, 2017, at 10:00
a.m., counsel for the parties are to advise the Court in
writing of the status of their discussions and be available
for a telephone conference with the Court if the undersigned
were to determine that a conference is warranted.
 According to the school's website,
depending on grade level, the 2017-2018 school term at IHSNO
begins on August 10th, 11th,
14th, or 15th. See
 Plaintiff suffers from Noonan Sydrome,
which requires that she wear orthotics to stabilize her feet
and legs while she walks. See Rec. Doc. 29-1, at 7.
In December 2016, she had surgery on her right foot that
prevents her from being able to climb stairs for the
foreseeable future. She soon will undergo a similar surgery
on her left foot, which again will prevent her from climbing
stairs for the foreseeable future. Id. As described
by Plaintiffs, “[p]rior to her December 2016 surgery,
A.S. spent most of her school day in a self-contained
classroom of fewer than 10 special education students located
on the second floor of the school. Plaintiff's surgery in
December 2016 rendered her unable to climb steps to the
second floor and, therefore, unable to reach her
classroom.” See Rec. Doc. 29-1, at 7.
Following that surgery, Plaintiff originally sought to have
her “class of fewer than ten students” relocated
“to available and suitable space at a first-floor
location” for the remainder of the 2016-2017 school
year. See Rec. Doc. 2-1 at 1; Rec. Doc. 4-1 at 1.
Thereafter, while IHSNO was closed for the summer, Defendant
VIBE relocated the “self-contained special education
classroom to the first floor of the school building to
accommodate students with disabilities similar to
Plaintiff.” See Rec. Doc. 34 at 3 n.2. In May
2017, however, Plaintiff's IEP team determined that her
appropriate educational setting for the 2017-18 academic year