The opinion of the court was delivered by: Rufe,j.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendant Mastery Charter School's Motion for Stay of Order Pending Appeal of this Court's December 29, 2010 Memorandum Opinion and Order to the Third Circuit.*fn1
The facts of this case were discussed in detail in this Court's December 29, 2010 Opinion and need not be repeated here.
On December 29, 2010, this Court issued an Opinion and Order granting R.B.'s Motion for an IDEA Stay-Put Injunction, based on its finding that Mastery Charter School, Pickett Campus ("Mastery"), changed R.B.'s educational placement by unilaterally disenrolling her on June 19, 2009.*fn2 For the reasons set forth in that opinion, this Court ordered the immediate reinstatement of R.B. at Mastery.*fn3 On December 30, 2010, Mastery appealed that judgment to the Third Circuit,*fn4 and now seeks a stay of the judgment order pending the Third Circuit's disposition of its appeal.*fn5
After careful consideration of the Defendant's Motion, Plaintiff's Opposition thereto, and for the reasons set forth below, Defendant's motion is denied.
Federal Rule of Civil Procedure 62(c) provides that "[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on . . . terms that secure the opposing party's rights." This type of injunctive relief is considered an "extraordinary remedy" which courts should only grant in "limited circumstances."*fn6 It is well settled that a party seeking the stay must show: (1) it will likely prevail on the merits of the appeal, (2) it will suffer irreparable injury if the stay is denied, (3) other parties will not be substantially harmed by the stay, and (4) the public interest will be served by granting the stay.*fn7 Although at least one court has held that this analysis is not required if the stay-put provision applies,*fn8 in the interest of conducting a comprehensive review, the Court will consider each factor in turn.
1. LIKELIHOOD OF SUCCESS ON THE MERITS OF THE APPEAL
Here, Defendants contend that they have a strong likelihood of success
on the merits by reiterating legal arguments this Court has already
considered-and rejected-in its December 29, 2010 opinion. Namely,
Mastery argues that it did not unilaterally change R.B.'s educational
placement because its actions complied with state law, and a change in
school is not a per se change in educational placement. These are the
issues are at the heart of this Court's ruling, which rejected
Mastery's arguments as unpersuasive. Although Mastery has enunciated a
legitimate appellate issue, and may ultimately prevail, a "colorable
issue . . . is not what is required for a stay pending
appeal."*fn9 Instead, the party arguing for a stay
must demonstrate a "substantial likelihood of success."*fn10
Mastery's memorandum in support of its motion points this
court to no intervening case law-or to any case law, for that matter,
that alters this Court's view of the legal questions in this
2. IRREPARABLE INJURY TO MASTERY
Mastery argues that it will be irreparably injured if this stay is denied because "significant harm is imposed by requiring Mastery Charter School to hold open spaces for a student being withheld because of IEP disputes," and because re-enrolling R.B. will force Mastery to violate the age range restrictions set forth under Pennsylvania law pursuant to 22 Pa. Code § 14.146. Neither argument is persuasive. As to the former, Mastery does not explain why or how "hold[ing] open spaces for students being withheld because of IEP disputes" will cause irreparable harm. It neither explains the number of students currently being withheld because of such disputes, nor does it offer any evidence of any type of financial or programmatic harm.
The latter argument is similarly deficient. Under both federal and state law, Mastery is required to deliver a free and appropriate public education ("FAPE") to its special education students until graduation or age twenty-one. A charter school's responsibility to children with disabilities is codified in 24 Pa. Code §§ 711, et seq. Section 711.3 mandates that "[c]harter schools . . . assume the duty to ensure that a FAPE is available to a child with a disability in compliance with IDEA and its implementing regulations," and incorporates by reference 34 CFR §300.101, which requires a FAPE be "available to all children . . . between the age of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school," and 34 C.F.R. § 300.102, which excuses a state's obligation to provide FAPE to students aged eighteen to twenty-one to the extent that "its application to those children would be inconsistent with State law or practice," unless a student between those ages has previously been identified as a child with a disability.*fn12 Since R.B. has already been identified as a student with a disability, Mastery's claim that "R.B.'s forced entry into the school would require the school to violate the age-range restrictions set forth in the School Code" falls short of consideration. Mastery appears to realize the weakness in its argument, as it omitted relevant and critical exceptions to the Pennsylvania statute it relies on.*fn13 ...