The opinion of the court was delivered by: Hochberg, District Judge
This matter comes before the Court upon Plaintiffs' request for an Order to Show Cause compelling Defendant to "fund all of the costs associated with [Plaintiff] K.R.'s placement at the Craig School retroactive from the start of this school year in September 2007 and to have such funding continue until this case is concluded." Brief of Plaintiffs in Support of Order to Show Cause ("Mot.") at 8. Plaintiffs seek relief pursuant to the "Pendent Placement Provision," 20 U.S.C. § 1415(j), of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1401, et seq. The Court has considered the arguments of the parties on the papers pursuant to Fed. R. Civ. P. 78.
There are few facts relevant to the present motion and they are largely undisputed. Plaintiff K.R. is thirteen and suffers from learning disabilities. She is currently enrolled in the Craig School, "a private day [school] that serves children with disabilities." See Mot. at 5.
Plaintiff K.R. has been enrolled at the Craig School since the 2004-05 school year. See Mot. Ex. A (Opinion of ALJ Sandra Ann Robinson), Findings of Fact ¶ 62. On October 31, 2007 Administrative Law Judge Sandra Ann Robinson issued an opinion in which she determined that "[t]he Roxbury School District delayed classifying K.R. for four years, even though there was sufficient information regarding ADHD, Dyslexia and her other learning disabilities . . . ." Id. ¶ 77. ALJ Robinson found that Roxbury had "no IEP in place and ready for implementation prior to the commencement of the 2004/2005 school year." Id. ¶ 82. Nor did Roxbury prepare an IEP prior to the 2005-06 or 2006-07 school years. See id. ¶¶ 83, 84. ALJ Robinson concluded that K.R.'s "parents' unilateral placement of K.R. in the Craig School was appropriate, reasonable, made in good faith and in accord with the Individuals with Disabilities Act." Id. ¶ 86.*fn1
Plaintiff K.R. remained enrolled in the Craig School for the 2007-08 school year. On December 20, 2007 Roxbury "conducted an IEP meeting with Plaintiffs and presented them with an IEP for K.R. for the 2007/2008 school year." Brief in Opposition ("Opp.") at 3. The IEP "called for [K.R.] to leave the Craig School immediately and return to the Roxbury School District in the middle of this school year." See Mot. at 7; see also Opp. at 3. On January 3, 2008 Plaintiffs filed a new Petition for Due Process against Roxbury challenging this portion of the IEP and "seeking to have K.R. . . . remain at the Craig School . . . ." See Mot. at 7.
Plaintiffs now seek an order "compell[ing Roxbury] to immediately continue making payments directly or via its school district for K.R. to receive special education and related services at the Craig School, including, but not limited to the costs of tuition as well as transportation, retroactive from the start of the 2007-2008 school year . . . ." See Plaintiffs' Proposed Order to Show Cause. The issue before the Court, therefore, is whether ALJ Robinson's opinion granting Plaintiffs request for reimbursement for the 2004-05, 2005-06, and 2006-07 school years also provides grounds to require Roxbury to pay Plaintiff K.R.'s tuition and costs while the dispute over Roxbury's December 20, 2007 IEP is litigated.
II. STANDARD FOR INJUNCTIVE RELIEF UNDER IDEA
The Individuals with Disabilities in Education Act ("IDEA") "provides funding to assist states in educating handicapped children living within their borders." See L.M. v. Evesham Twp. Bd. of Ed., 256 F. Supp. 2d 290, 291 (D.N.J. 2003). In exchange for this funding, participating states must abide by certain procedures mandated by the Act. "Chief among a participating state's duties is that of creating an Individualized Education Plan ("IEP") for each disabled student within the state's school system." See 20 U.S.C. § 1414(d); see also id. at 292. Parents who disagree with an IEP may challenge it. In New Jersey, those challenges are heard by the Office of Administrative Law and adjudicated by administrative law judges. See N.J. ADMIN. CODE § 6A:14-2.7 ("A due process hearing is an administrative hearing conducted by an administrative law judge.").
A student's placement during the pendency of her challenge to an IEP is governed by a provision in IDEA known as either the "Stay-Put Provision" or "Pendent Placement Provision."
Plaintiffs' request for injunctive relief is based upon this provision. The Pendant Placement Provision requires that during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.
Requests for injunctive relief under IDEA's Pendent Placement Provision are subject to a different standard than requests made pursuant to Fed. R. Civ. P. 65.*fn3 "The Supreme Court has described the language of [the Pendent Placement provision] as 'unequivocal,' in that it states plainly that 'the child shall remain in the then current educational placement.'" See Drinker v. Colonial School Dist., 78 F.3d 859, 864 (3d Cir. 1996) (quoting Honig v. Doe, 484 U.S. 305, 323 (1988)). Consequently, the Pendent Placement Provision "of the IDEA functions, in essence, as an automatic preliminary injunction." Id. (citing Zvi D. V. Ambach, 694 F.2d 904, 906 (2d Cir. 1982)). In Drinker the Third Circuit concluded with regard to injunctive relief that "'[t]he statute substitutes an absolute rule in favor of the status quo for the court's discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation and a balance of hardships.'" Id. (quoting Zvi D., 694 F.2d at 906); see also Lauren W. v. Bd. of Educ. of Radnor Twp. School Dist., No. 02-4775, 2002 WL 32130764, *4 (E.D. Pa. Sept. 12, 2002) ...