Documente Academic
Documente Profesional
Documente Cultură
18-55779
__________________________
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________________________________
v.
Page
INTRODUCTION ..................................................................................................1
ISSUE(S) PRESENTED.........................................................................................3
II. C.Q. Continues to Attend Prentice When the IEP Team Did Not
Meet and did not Agree Upon or Offer a New Placement .......................5
III. After C.Q. Files for Due Process, The OAH Denies Her Stay Put
Motion—Issuing no Order—and Denies Her Subsequent Requests
for Clarification ............................................................................................6
IV. The District Court Grants C.Q.’s Stay Put Request .................................7
ARGUMENT ........................................................................................................11
i
Page
B. River Springs Misplaces its Reliance on N.D. v.
Hawaii Dept. of Education, Because N.D. Did Not
Involve a Change in Placement Sufficient to Trigger
Stay Put .............................................................................................15
ii
Page
2. Neither Leonard nor Verhoeven Change the
Result, because those Non-binding Cases
Considered Placements That Contained Explicit
Deadlines and Affirmatively Placed the Students
Elsewhere After Those Deadlines Expired ............................ 26
IV. This Panel Must Affirm the District Court’s Order Even If It
Reviews the Order Under the Traditional Injunction Tests,
Because C.Q. Proffered Evidence That Removal from Prentice
Would Devastate Her Educational Progress ...........................................32
iii
Page
1. C.Q. Will Succeed on the Merits, Because River
Springs Violated the IDEA When It Unilaterally
Removed Her from Prentice and Flabob is Not an
Appropriate Placement .......................................................... 37
V. CONCLUSION...........................................................................................39
iv
TABLE OF AUTHORITIES
Cases
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) .............................................................................. 32
Andersen ex rel. Anderson v. District of Columbia,
877 F.2d 1018 (D.C. Cir. 1989) ........................................................................... 14
Boys Markets, Inc. v. Retail Clerks Local Union, Local 770,
398 U.S. 235 (1970) ............................................................................................. 21
Computer Task Group, Inc. v. Brotby,
95 Fed. Appx. 881 (9th Cir. 2004) ....................................................................... 15
Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424 (2001) ............................................................................................. 21
D.M. v. New Jersey Dep’t of Educ.,
801 F.3d 205 (3rd Cir. 2015)................................................................................ 22
F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc.,
152 F.3d 925 (9th Cir. 1998) ................................................................................ 30
Family Mortg. Corp. No. 15 v. Greiner,
279 Fed. Appx 561 (9th Cir. 2008) ...................................................................... 30
Fed. Sav. & Loan Ins. Corp. v. Butler,
904 F.2d 505 (9th Cir. 1990) ................................................................................ 16
Flick v. Liberty Mut. Fire Ins. Co.,
205 F.3d 386 (9th Cir. 2000) ................................................................................ 21
Hart v. Massanari,
266 F.3d 1155 (9th Cir. 2001) .............................................................................. 20
Honig v. Doe,
484 U.S. 305 (1987) ................................................................................. 23, 30, 38
In re Cardelucci,
285 F.3d 1231 (9th Cir. 2002) .............................................................................. 21
Johnson ex rel. Johnson v. Special Educ. Hearing Office,
287 F.3d 1176 (9th Cir. 2002) .......................................................................passim
Joshua A. v. Rocklin Unified Sch. Dist.,
559 F.3d 1036 (9th Cir. 2009) ................................................................................ 1
L.M. ex rel Sam. M. v. Capistrano Unified Sch. Dist.,
538 F.3d 1261 (9th Cir. 2008) .............................................................................. 23
v
Leonard v. McKenzie,
869 F.2d 1558 (D.C. Cir. 1989) ....................................................................passim
Mackey v. Bd. of Educ.,
386 F.3d 158 (2d Cir. 2004) ................................................................................. 22
Marbled Murrelet v. Babbitt,
83 F.3d 1060 (9th Cir. 1996) ................................................................................ 23
Matthews v. Chevron Corp.,
362 F.3d 1172 (9th Cir. 2004). ........................................................... 23, 30, 36, 37
N.D. v. Hawaii Dep't of Educ.,
600 F.3d 1104 (9th Cir. 2010) .......................................................................... 9, 15
N.E. v. Seattle School District,
842 F.3d 1093 (9th Cir. 2016) ............................................................ 24, 25, 28, 31
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr.,
810 F.3d 631 (9th Cir. 2015) ................................................................................ 32
Prudential Real Estate Affiliates, Inc. v. PPR Reality, Inc.,
204 F.3d 867 (9th Cir. 2000) ................................................................................ 22
Ramirez v. City of Buena Park,
500 F.3d 1012 (9th Cir. 2009) .............................................................................. 23
Smith v. Chetenne Mountain Sch. Dist.,
652 Fed. Appx. 697 (10th Cir. 2016) ................................................................... 22
Stewart v. Cate,
757 F.3d 929 (9th Cir. 2014) ................................................................................ 21
Termine ex rel. Termine v. William S. Hart Union High Sch. Dist.,
219 F. Supp. 2d 1049 (C.D. Cal. Aug. 20, 2002) ............................................. 9, 16
Turner v. Clark County,
2017 WL 4274161 (D. Nev. Sept. 25, 2017) ....................................................... 32
Van Duyn v. Baker Sch. Dist.,
502 F. 3d 811 (9th Cir. 2007) ............................................................................... 36
Verhoeven v. Brunswick Sch. Comm.,
207 F.3d 1 (1st Cir. 1999) .................................................................. 10, 24, 27, 28
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................. 37
vi
Statutes
20 U.S.C. § 1415(j) 3, 8, 12
Regulations
vii
34 C.F.R. § 300.8 .................................................................................................... 11
viii
INTRODUCTION
develop Individualized Education Plans (“IEPs”) for students with disabilities, with
input from parents and educators (the “IEP team”). An IEP governs a student’s
educational services and placement. A student may seek judicial intervention when
a dispute arises over the IEP. During such a dispute, a student may move for a “Stay
Put” order, which keeps her in her current educational placement. “Current
educational placement” means the placement in the student’s operative IEP. A Stay
Put motion—in any forum—is an automatic injunction, so a student need not satisfy
Unified Sch. Dist., 559 F.3d 1036, 1037, 1040 (9th Cir. 2009).
Here, Appellant River Springs implemented an IEP that placed Appellee C.Q.
at The Prentice School (a Certified California Non Public School). An IEP dispute
arose while C.Q. was at Prentice, and C.Q. filed for a due process hearing with the
Office of Administrative Hearings (“OAH”). She sought a Stay Put order to keep
her at Prentice. The OAH denied C.Q.’s motion, issued no injunction, and did not
identify where it believed C.Q.’s appropriate placement was. The OAH’s denial
flouted the IDEA’s language and purpose. Not only did it disrupt C.Q.’s enrollment
at Prentice—the placement stated in her operative IEP—but it left C.Q. without any
1
placement, in an educational void. C.Q. sought relief in District Court. The District
Court applied the automatic injunction standard, found that C.Q.’s current placement
was Prentice, and issued the Stay Put injunction. River Springs appealed, arguing:
(1) that the District Court should have applied the heightened, traditional preliminary
injunction standard; and (2) that Prentice was not C.Q.’s current placement for Stay
Put purposes, in part because (River Springs claims) the placement was temporary.
The first contention flouts the text and intent of the IDEA—to maintain
educational continuity. It also ignores the distinctions between C.Q.’s case and the
precedent upon which River Springs relies. Most importantly, it ignores that there
was no existing injunction (or Stay Put Order) in place when C.Q. went to District
Court. As such, the automatic injunction rule governs this case. Secondly, the
District Court correctly found that C.Q.’s Prentice placement was not temporary and
that her operative IEP listed no alternative placement. River Springs has not
demonstrated clear error in that finding. Last, C.Q. prevails even under the
traditional injunction analysis, because the District Court found irreparable past and
potential harm to C.Q. Thus, this Panel must affirm the District Court’s order.
STATEMENT OF JURISDICTION
2
APPLICABLE AUTHORITIES
The statute most pertinent to this appeal is the “Stay Put” statute—United
All other statutory and regulatory authorities appear in the addendum to this brief.
ISSUE(S) PRESENTED
C.Q. frames the issues in a way she believes provides more clarity and
precision:
Courts apply the “automatic injunction” standard to a student’s Stay Put request?
Prentice Non Public School—when her operative IEP placed her there and identified
3
STATEMENT OF THE CASE
fine and gross motor skills deficits; socialization problems; pragmatic and
problems; and sensory processing deficits. [ER 124 at ¶ 9.] Thus, C.Q. must receive
interaction, opportunities for building social skills and awareness, speech therapy,
services. [ER 102-103; 117 at ¶¶ 5-6; 120-21 at ¶¶ 8, 13, 15.] Because of her
disabilities, C.Q. qualifies for special education services under the IDEA.
On April 28, 2017, C.Q.’s IEP team prepared an IEP that provided various
12, 2017, C.Q.’s parents rejected River Springs’s offer to place C.Q. at Somerset
Education NPS. [ER 66:13–14, 98.] On August 4, 2017, the parties drafted an
28, 2017 IEP by reference; and (3) superseded all prior IEPs. [ER 102; see ER 39,
IEP team will meet within 30 days of the start of the school
year and will review progress at the Annual Review to be
held on or before 1/12/18 and determine if services should
continue and/or if any changes are necessary. River
Springs Charter School is not offering Prentice as the
specified school for stay-put circumstances. Placement is
contingent on whether or not [C.Q.] is making sufficient
progress based on her unique needs based on data
provided.
[See ER 39.]
At Prentice, C.Q. made two years of progress in less than one year. [ER 283.]
This was a vast improvement from all her prior placements. Id.
II. C.Q. Continues to Attend Prentice When the IEP Team Did Not Meet
and did not Agree Upon or Offer a New Placement
The IEP team did not convene before January 12, 2018. ER 68:3–4. Instead,
the IEP team met on February 9, 2018, and March 2, 2018. Because the semester
had already begun, C.Q. continued to attend Prentice beyond January 12, 2018. [ER
95; ER 68:8–10.] At the IEP meeting, River Springs recommended the Flabob
rocketry. [ER 68:4–5; 120-21 at ¶¶ 12-15.] C.Q.’s parents rejected the Flabob
5
C.Q. filed for a due process hearing with the OAH on March 21, 2013. [ER
126–152.] Two days later, River Springs terminated funding for C.Q.’s tuition at
Prentice. [ER 95.] Prentice allowed C.Q. to stay until April 19, 2018, but then she
had to withdraw because River Springs refused to pay. [See ER 294 at ¶13.] After
she left Prentice, C.Q. had no educational services provided to her. [ER 95.]
III. After C.Q. Files for Due Process, The OAH Denies Her Stay Put
Motion—Issuing no Order—and Denies Her Subsequent Requests for
Clarification
C.Q. filed a Stay Put request seeking to restore her placement at Prentice. [ER
153–169.] C.Q. amended her complaint and request for Stay Put on April 3, 2018.
River Springs opposed. [ER 219–227.] The OAH denied C.Q.’s Stay Put request,
C.Q. asked the OAH to clarify whether C.Q. was entitled to remain in an NPS
placement. [ER 42, 253–257.] The OAH refused to clarify what—if anything—it
believed C.Q.’s legal educational placement to be. [ER 42; see AOB at 20,
(admitting that the OAH “did not identify what placement [C.Q.] was entitled to
The OAH proceedings had two significant results: (1) there was no existing
C.Q. was left in an educational void. [ER 42, 45–46.] It is important to note that
River Springs misrepresents the procedural history of this case. Its brief claims that
6
there is an existing Stay Put injunction in place, but there is not. [Compare ER 42,
45–46, with AOB at 19 (claiming C.Q. sought to “set aside the OAH order.”); id. at
39 (same).]
Without further recourse at the OAH, C.Q. sought a Stay Put order from the
District Court. [See ER 308, Prayer for Relief, at ¶ 2.] The District Court determined
that the Prentice NPS was C.Q.’s current educational placement and granted her Stay
In doing so, the District Court made several factual findings. It determined
that the August 4, 2017 IEP amended the April 28, 2018 IEP—meaning that the two
documents together constituted C.Q.’s IEP, and the August 4 document controlled
if the documents conflicted. [ER 39, n.2.] Also, “the parties only knew at the signing
of the IEP that C.Q. was entitled to an NPS for the full academic year, and that the
NPS would be the Prentice School for at least the first semester.” [ER 40.] It
additionally found that “the August 4, 2017 IEP superseded any prior IEP,
guaranteed C.Q. placement at an NPS for the pendency of the 2017-2018 academic
year and did not specify . . . that RSCS would be the school C.Q. would attend
River Springs claimed that C.Q.’s parents had agreed that C.Q. could not seek
Stay Put at Prentice, but the District Court found the opposite:
7
To the extent that RSCS argues that the parties “otherwise
agreed” to a specific stay-put school, the amendment
explicitly states that RSCS “is not offering” Prentice as the
specified stay-put school, not that the parties agreed that
Prentice would not be the specified stay-put school or that
another school would be designated school for stay-put
purposes.
[ER 40, n.4 (emphasis in original).] Last, Judge Otero found that “the several month
harm . . . .” [ER 38, n.1.] He further noted that the “disruption led to the exact
placement to C.Q. in an educational institution that adhered to the terms of the IEP
As such, the District Court ruled “barring the Court’s determination that there
a decision that would undercut the statute’s very purpose, the Court finds that C.Q.
was entitled to remain at Prentice during the pendency of the dispute.” [ER 41
SUMMARY OF ARGUMENT
Stay Put order, that request functions as an automatic injunction. This Circuit has
already confirmed the sweeping breadth of the Stay Put statute and the automatic
8
injunction rule. Joshua A., 559 F.3d at 1037, 1040. Here, the District Court correctly
River Springs contends that the District Court should have utilized a
of Education, 600 F.3d 1104 (9th Cir. 2010) and Johnson ex rel. Johnson v. Special
Education Hearing Office, 287 F.3d 1176, 1176–1179 (9th Cir. 2002). Neither case
applies. First, the Stay Put statue did not apply in N.D. because N.D. involved
would trigger the Stay Put. Second, in Johnson, this Circuit held that a student must
injunction. That is not the case here. The OAH never issued any order or injunction
that named C.Q.’s placement. Moreover, Johnson’s facts were so unique that it
would decimate Stay Put to apply its holding outside of that case’s circumstances.
This Panel must clarify that Johnson was one of a kind. It must do so in part because
Johnson’s language has spurred confusion. See, e.g., Termine ex rel. Termine v.
William S. Hart Union High School District, 219 F. Supp. 2d 1049, 1055 (C.D. Cal.
Aug. 20, 2002) (noting that Johnson “stopped short” of explaining if its holding
9
Next, River Springs argues that Prentice could not operate as C.Q.’s Stay Put
parental consent for a multi-stage IEP and a long-term placement goal beyond
Prentice. It did not. The District Court found that C.Q.’s single-stage IEP had only
one non-temporary placement—Prentice NPS. It also found that the operative IEP
identified no alternative placement and that C.Q.’s parents never agreed to River
Springs’ attempt to exempt the NPS from Stay Put. In doing so, the District Court
correctly distinguished the authority upon which River Springs relies, Verhoeven v.
Brunswick School Committee, 207 F.3d 1, 7–8 (1st Cir. 1999) and Leonard v.
Last, C.Q. presented to the District Court a comprehensive factual record that
declarations from medical professionals who determined C.Q. would suffer severe
emotional and educational harm if removed from Prentice. As such, even if this
Panel applies the traditional injunction standard, the District Court’s order must still
be affirmed.
10
ARGUMENT
Students with certain disabilities qualify for “special education” under the
students, to meet their obligation to provide all students a Free Appropriate Public
The IDEA imposes procedural and substantive requirements to ensure the student
(“IEP”). The IEP is a written statement outlining the services that the educational
agency must provide and the student’s educational placement. 20 U.S.C. § 1401(14);
C.F.R. § 300.9(c).
11
If a parent does not feel an IEP meets the student’s needs, the parent may file
for a due process hearing, where an administrative officer determines the services
§§ 300.503, 300.507. During such a dispute, the child must remain in their “then-
preserving the student’s placement—a Stay Put order. 20 U.S.C. § 1415(j). A Stay
showing on the part of the moving party, and no balancing of equities by the court.”
disabilities.” See 20 U.S.C. § 1400(c)(1). That goal guides this Circuit’s analysis of
Stay Put appeals. Joshua A., 559 F.3d at 1039–40. Thus, every decision must
1415(a); Joshua A., 559 F.3d at 1039–40 (explaining “Congress’s sense that there is
12
II. The District Court Applied the Correct Automatic Injunction Standard,
which Governs Regardless of Venue or Procedure
Stay Put’s automatic injunction standard applies “during the pendency of any”
mediation, due process hearing, state administrative review, or civil action arising
C.F.R. § 300.518; Joshua A, 559 F.3d at 1038–39. By enacting the Stay Put
In Joshua A, this Circuit found that the IDEA’s text, public policy, and case
law supported the application of the automatic injunction standard at all stages of an
IEP dispute. Id. at 1038–39. First, it rejected the defendant’s contention that section
1415(j)’s automatic standard did not apply to Ninth Circuit appeals because that
reading was “unnecessarily narrow.” Id. at 1038. It noted that Congress must have
contemplated that appeals from lower decisions would arrive at the Circuit courts
and thus that Congress intended the automatic injunction standard to apply
uniformly across all venues and throughout a dispute’s pendency. Id. It then pointed
13
Second, this Circuit rejected the application of an out-of-circuit case that
would have changed the standard. Joshua A, 559 F.3d at 1038 (refusing to rely on
Andersen ex rel. Andersen v. District of Columbia, 877 F.2d 1018, 1023–24 (D.C.
injunction standard does not apply after a judicial body has ruled on the matter in
Third, Joshua A. found that “structural and policy considerations” support the
application of the automatic injunction standard across all venues. Joshua A, 559
F.3d at 1039. “The fact that the stay put provision requires no specific showing on
the part of the moving party, and no balancing of equities by the court, evidences
Congress’s sense that there is a heightened risk of irreparable harm inherent in the
setting.” Id. “It is unlikely that Congress intended [the] protective [Stay Put] measure
to end suddenly and arbitrarily before the dispute is fully resolved.” Id.
C.Q. sought a Stay Put order, so Joshua A. governs here. [Cf. ER 37–41.] The
2
In Andersen, the D.C. Circuit concluded that “[o]nce a district court has rendered
its decision approving a change in placement, that change is no longer the
consequence of a unilateral decision by school authorities; the issuance of an
automatic injunction perpetuating the prior placement [through the appeals process]
would not serve the section’s purpose.” Andersen, 877 F.2d at 1024. As discussed
above, the Ninth Circuit has rejected that approach. Joshua A., 559 F.3d at 1038.
14
B. River Springs Misplaces its Reliance on N.D. v. Hawaii Dept. of
Education, Because N.D. Did Not Involve a Change in Placement
Sufficient to Trigger Stay Put
River Springs cites two cases to support its assertion that the District Court
was obligated to apply the preliminary injunction analysis. The first is N.D. v.
That case does not apply here because it did not involve a change in placement
and therefore did not trigger Stay Put. In its opening paragraph, that panel held “that
the stay-put provision of the IDEA was not intended to cover system-wide changes
in public schools that affect disabled and non-disabled children alike, and that such
system-wide changes are not changes in educational placement.” N.D., 600 F.3d at
1107. Those system-wide changes were the genesis of that student’s claims. Thus,
the N.D. panel applied the traditional preliminary injunction analysis. Because Stay
Put did not govern N.D., N.D. does not govern this case.
argue that the traditional injunction standard applies. See Computer Task Group, Inc.
v. Brotby, 95 Fed. Appx. 881, 881 (9th Cir. 2004) (holding that defendant waived
argument that district court should have applied different law when it failed to make
15
contention at district court); Federal Savings and Loan Ins. Corp. v. Butler, 904 F.2d
505, 509 (9th Cir. 1990) (same). River Springs’ opposition to C.Q.’s ex parte
Springs did not discuss Johnson nor the traditional injunction test during oral
argument. [ER 1–36.] Thus, River Springs waived this argument. Nevertheless, C.Q.
addresses this argument here, because this Court should clarify that Johnson is an
oddity that does not apply to most Stay Put cases, including this one. Cf. Termine,
2. Johnson is Inapplicable
students under the age of three. Johnson, 287 F.3d at 1176–79. The IFSP expired on
the student’s third birthday, and responsibility for the student’s education transferred
duplicated the services provided by the ISFP but used different vendors. Id. at 1179.
The student moved for Stay Put at the administrative level and contended that
Stay Put obligated Clovis to utilize the same vendors he enjoyed under his expired
IFSP. The administrative body granted the Stay Put order but denied the student’s
request regarding the vendors. Id. It analogized the student to a child who transfers
16
between school districts—they are entitled to the same services, but the new district
“need not, and probably could not, provide the exact same educational program.” Id.
at 1181. The student then went to district court, requesting an injunction of the
administrative Stay Put order. Id. at 1179. The district court applied the traditional
This Circuit affirmed. It held that “a request to enjoin a preexisting ‘stay put’
preliminary injunction analysis.” Id. at 1180 (emphasis added). In doing so, it noted
that the “district court was not asked to grant an original ‘stay put’ order,” but to
“enjoin the Hearing Office’s preexisting ‘stay put’ order.” Id. The court issued this
holding “because the ‘stay put’ order accomplishing that purpose [of maintaining
the status quo] had already been granted by the Hearing Office.”3 Id. In other words,
this Circuit opined that when a student seeks to modify a Stay Put order that provides
substantially the same services they were previously receiving from a different
public entity, they must satisfy a higher standard because the IDEA’s purpose has
3
In this way, Johnson could be viewed as a non-Stay-Put case, like N.D. In both
cases, the student was not truly seeking Stay Put, but something more. That is
why the higher showing was required in both instances.
17
C.Q.’s case differs from Johnson in procedure, substance, and policy. First,
there is no existing injunction against River Springs—the OAH issued no Stay Put
order. [ER 42, 45–46.] It denied C.Q.’s request for Stay Put and her subsequent
motions for reconsideration and clarification. [ER 42, 45–46.] It is important to note
that River Springs misrepresents the procedural history of this case. Its brief claims
that there is an existing Stay Put injunction in place, but there is not. [Compare ER
42, 45–46, with AOB at 19 (claiming C.Q. sought to “set aside the OAH order”;
AOB at 39 (same).] At the District Court, C.Q. sought a Stay Put order in the first
instance, which falls outside of Johnson’s ambit and within Joshua A’s holding. [See
ER 37–41; Johnson, 287 F.3d at 1180 (assessing only “preexisting ‘stay put’
orders”); Joshua A, 559 F.3d at 1038 (rejecting contention that the standard changes
after the first judicial decision on a Stay Put request). For these reasons, this Panel
must apply Joshua A. and hold that the automatic injunction standard applies.
Second, C.Q.’s Stay Put request does not arise in the context of a transfer
between public entities. C.Q. seeks to stay in her NPS placement at Prentice, where
she has been for the most of the 2017-2018 schoolyear. [ER 102; see ER 39, 40–41.]
As such, there is no concern here about obligating two different entities to provide
Third, applying Johnson here would not serve the IDEA’s policy of
preventing school districts from locking students out of their education. See Joshua
18
A., 559 F.3d at 1039–40 (explaining “Congress’s sense that there is a heightened risk
education—the opposite of the result that Congress intended in enacting Stay Put.
She will have no school to attend and no services administered to her. [ER 42, 45–
46.] In other words, she would be left in an educational void. The OAH ruling does
would undermine the IDEA to require C.Q. to satisfy the traditional preliminary
C.Q.—unlike the Johnson student—does not seek to change an order that provides
her with the services to which she is entitled. To the contrary, she challenges a
contravene the IDEA’s text, undermine the intent of Stay Put, violate students’
fundamental rights to educational access, and impose multiple standards to the same
question depending on the presiding venue. This Panel has the first opportunity to
19
limit Johnson to its unique facts and prevent a precedential sprawl that would
controvert the IDEA’s and Stay Put’s goals. Cf. see Hart v. Massanari, 266 F.3d
1155, 1172 (9th Cir. 2001) (noting that the first panel to address an issue creates
Some of the reasons Johnson cannot be expanded are the same reasons it
cannot apply to this case. The Johnson student wanted an injunction against an
existing appropriate Stay Put order. Johnson, 287 F.3d at 1180. The Johnson court
applied an elevated standard only because the student sought relief beyond that
which Stay Put provides—he had already obtained an injunction ensuring he would
Johnson, 287 F.3d at 1181 (noting new public entity “probably could not” provide
exact same vendors as prior entity). The Johnson court found that a change in service
providers was not the type of unilateral change of placement which Congress
intended to trigger a student’s right to Stay Put. If Johnson applied to cases involving
20
It is also not what the Stay Put statute’s language mandates. Applied outside
itself, Johnson would directly conflict with the text of the Stay Put provision because
it would expose all Stay Put requests to a higher, non-automatic standard. That
would impose an undue burden on families seeking to return their children to class
proceedings); Joshua A., 559 F.3d at 1038–39 (clarifying that section 1415(j) applies
to appellate proceedings).
Last, Johnson would create inconsistency if this Circuit applied its holding to
any non-identical case. The applicable injunction standard would differ depending
on whether a student sought Stay Put from a district court in the first instance or
started with the administrative officer. This Circuit condemns holdings that
of Johnson which would do just that. See, e.g., Flick v. Liberty Mut. Fire Ins. Co.,
205 F.3d 386, 390 (9th Cir. 2000); In re Cardelucci, 285 F.3d 1231, 1236 (9th Cir.
2002); Stewart v. Cate, 757 F.3d 929, 949 (9th Cir. 2014); see also Boys Markets,
Inc. v. Retail Clerks Local Union, Local 770, 398 U.S. 235, 246 (1970) (noting
interest in “the federal policy of labor law uniformity”); Cooper Indus., Inc. v.
Leatherman Tool Grp., Inc., 532 U.S. 424, 436 (2001). That is particularly true here,
because the IDEA authorizes a Stay Put order “regardless of whether [the student’s
21
underlying] case is meritorious or not,” whereas the traditional injunction standard
Educ., 386 F.3d 158, 160 (2d Cir. 2004) (quoted); Prudential Real Estate Affiliates,
Inc. v. PPR Reality, Inc., 204 F.3d 867, 874 (9th Cir. 2000) (stating traditional
injunction test). Differing results would abound if differing standards applied. That
In short, Johnson is an anomaly and must remain so. Joshua A. applies here.
In this case, the District Court’s only task was to determine what constituted C.Q.’s
III. Prentice NPS Was C.Q.’S Current Educational Placement, because her
IEP Identified No Subsequent or Alternative Placement and River
Springs Cannot Rely on Its Attempt to Carve Prentice Out of the Statute
A Stay Put order is reviewed de novo. Smith v. Chetenne Mountain Sch. Dist.,
652 Fed. Appx. 697, 700 (10th Cir. 2016); D.M. v. New Jersey Dep’t of Educ., 801
F.3d 205, 211 (3rd Cir. 2015). However, when the facts are disputed, factual
findings are reviewed for clear error. Matthews v. Chevron Corp., 362 F.3d 1172,
4
Though the issue is not before this Court, C.Q. notes that Johnson would not and
should not govern an appeal of a Stay Put order that placed the student in an
inappropriate educational setting. Stay Put mandates maintenance of the status quo
in an appropriate educational setting. If the educational setting was inappropriate,
imposing a higher standard would undermine Stay Put’s goals.
22
1180 (9th Cir. 2004). Thus, this Panel applies de novo review to the District Court’s
legal analysis as applied to the District Court’s factual findings, unless the District
This Panel need not address River Springs’ evidentiary objections. A party
abandons evidentiary objections on appeal when the district court does not rule on
the objections and the party then fails to request such a ruling. See Ramirez v. City
of Buena Park, 500 F.3d 1012, 1026 (9th Cir. 2009); Marbled Murrelet v. Babbitt,
83 F.3d 1060, 1066–67 (9th Cir. 1996). That is what happened here. [ER 01–36
placement described in the child’s most recently implemented IEP.” Joshua A., 559
F.3d at 1037 (quoting L.M. ex rel Sam. M. v. Capistrano Unified Sch. Dist., 538 F.3d
1261, 1270 (9th Cir. 2008)). If a school district challenges a student’s Stay Put
request, the “burden rests with the school district to demonstrate that the educational
status quo must be altered.” Honig v. Doe, 484 U.S. 305, 328 (1987).
C.Q.’s most recent operative IEP placed her at an NPS, Prentice. [ER 37–41.]
This ends the inquiry. As discussed below, River Springs’ contrary arguments are
meritless.
23
C. C.Q.’s Placement Was Not Temporary, because her IEP Identified
No Alternative, Subsequent, or Other Permanent Placement
that the order removing her from Prentice with no designated alternative should
stand—because (1) the IEP planned for a future IEP meeting to assess whether
Prentice was appropriate; and (2) River Springs tried to carve out Prentice from Stay
Put status. See AOB, at 20–30 (citing Verhoeven v. Brunswick Sch. Comm., 207 F.3d
1, 7–8 (1st Cir. 1999); Leonard v. McKenzie, 869 F.2d 1558, 1563–64 (D.C. Cir
The Ninth Circuit has validated “multi-stage” placements, which result when
an IEP sets a deadline for one placement to expire and explicitly identifies the
subsequent placement. See N.E. v. Seattle School District, 842 F.3d 1093, 1097 (9th
Cir. 2016). In N.E., the “IEP incorporated two stages: During stage one, N.E. would
finish the end of the 2014–15 school year in the agreed-upon individual class; during
stage two, for the 2015–16 school year and beginning on September 1, 2015, N.E.
would be placed in a self-contained class.” Id. at 1094–95. After the 2016 school
year ended, the student moved to a new district. The new district placed the student
in a self-contained class (in the second stage of the IEP). Id. at 1095–96. The student
sought a Stay Put order placing him in an individual class, arguing that the IEP’s
24
second stage had not yet been implemented so the individual classroom was his Stay
This Circuit disagreed. It held that N.E.’s placement was in the self-contained
class (the IEP’s second stage), because the student’s new placement ensued at the
time listed in the IEP. Id. at 1097–98. It noted that a “multi-stage IEP could be
structured as several distinct IEPs, but it need not be.” Id. at 1097. (emphasis in
The inverse is true here. C.Q.’s IEP could have been structured as a multi-
stage IEP, but it was not. [ER 99–103.] The IEP named only one placement—
Prentice NPS. [ER 102.] It contemplated a later, distinct IEP after an assessment of
whether Prentice NPS was appropriate. Unlike the N.E. student, C.Q. did not have a
multi-stage IEP, and therefore her IEP could not have spurred an automatic change
in placement. [ER 40–41 (finding that the August 4, 2017 document “did not specify
or indicate that that [River Springs] would be the school C.Q. would attend if the
conditions for remaining at Prentice were not met.”)] That is why she continued to
attend Prentice when the IEP team neglected to meet as planned. [ER 68:3–4.] Under
N.E., River Springs could have staged C.Q.’s IEP so that Prentice did not operate as
her educational placement after one semester (if C.Q.’s parents had agreed). It did
not. [ER 102.] C.Q.’s one-stage IEP lists only one placement, and that is where she
is entitled to stay while her due process hearing proceeds. [ER 37–41, 402.]
25
2. Neither Leonard nor Verhoeven Change the Result, because
those Non-binding Cases Considered Placements That
Contained Explicit Deadlines and Affirmatively Placed the
Students Elsewhere After Those Deadlines Expired
River Springs relies on the same out-of-circuit cases as the OAH did to deny
Washington (a private school) after the local educational agency attempted to place
him at a public school, Prospect. Leonard, 869 F.2d at 1560. No IEP had never
placed him at Lab. Id. During the IEP dispute, the administrative hearing officer
found both Lab and Prospect appropriate to satisfy the student’s needs. Id.
Nevertheless, the hearing officer ordered the educational agency to pay for Lab until
the end of the year because the district had committed numerous procedural
violations. Id. The administrative hearing officer then notified the parties that they
should prepare for the student’s transfer to Prospect after the 1985–1986 school year.
Id. The parents again filed for due process and Stay Put, but the administrative
officer determined that Prospect was appropriate and denied the request. Id. The
parents appealed to district court, which affirmed the administrative order. Id. at
1560-61.
The D.C. Circuit affirmed. Id. at 1564. It determined that Lab was not the
student’s current educational placement because the earlier administrative order set
an end date for the student’s attendance at Lab. Id. Said differently, the student’s
26
operative educational plan moved him from Lab to Prospect after the summer break,
so the Lab placement had already ended and could not function as the operative
placement for Stay Put purposes. The D.C. Circuit emphasized that all parties knew
of the upcoming transfer. Id. (“Thus, appellants were on notice that the Lab School
school year ended.”). The hearing officer had already found Prospect appropriate,
In Verhoeven, on the heels of an IEP dispute, the student and the school district
executed a settlement that “temporarily place[d] P.J. at the Southern Maine Learning
Center [“SMLC”] through the end of the 1997–98 school year.” Verhoeven, 207 F.3d
at 3. The student was to move to Brunswick High School after June of 1998. Id. On
June 1, 1998, the student’s IEP team confirmed the Brunswick placement. In July of
1998, before the schoolyear started, the student sought due process and asked for a
Stay Put order keeping him at SMLC. Id. at 4. The administrative hearing officer
determined that Brunswick was the operative placement. Id. The student sought
relief in district court, which denied the request and agreed that Brunswick was the
The First Circuit upheld the district court’s order. It determined that the
27
SMLC. Id. at 7–8. That panel noted that the parties’ settlement agreement expressly
Id. at 10. Therefore, it could not “be said that P.J.’s ‘current educational placement’
on July 20, 1998—the date the Verhoevens filed their challenge to the IEP reached
on June 1, 1998—was the recently ended SMLC placement.” Id. As in Leonard, this
because the student had an appropriate school to attend after summer ended.
Neither case explicitly calls the operative educational plans “multi-stage,” but that
is what they were. Stage 1 of the Verhoeven student’s plan was Lab, stage 2 was
Prospect. The Leonard plan staged the student first at SMLC and second at
Brunswick. Compare Verhoeven, 207 F.3d at 3–4, 7–8, and Leonard, 869 F.2d at
If Verhoeven and Leonard are apples, C.Q.’s case is an orange. First, the
the Verhoeven student had Brunswick and the Leonard child had Prospect. [See ER
102.] Thus, C.Q. continued her education at Prentice when the parties did not agree
to a future or alternative placement and did not convene a new IEP. [ER 68:8–10,
would have left the NPS and transitioned to a different placement—as the Leonard
28
and Verhoeven students did—but she did not, because she could not. For the same
reasons, C.Q. had no notice that her placement could change, whereas the students
Even the OAH recognized that C.Q. had no post-Prentice placement; it placed
her nowhere. [ER 42, 45–46.] That non-placement was a legal impossibility which
violated the IDEA’s mandate for a FAPE. This case contrasts Verhoeven and
Leonard because both of those students had adequate educational placements ready
for their enrollment. As such, neither case changes the result—the District Court’s
River Springs relies on a sentence in the IEP to assert that Prentice was not
C.Q.’s Stay Put placement: “River Springs Charter School is not offering Prentice
a. The District Court did not Clearly Err When It Found the
Parties Had Not Agreed to the Carve-out Provision
The District Court found that C.Q. and her parents had not accepted the offer
of the Carve-out provision and thus found ineffective the attempt to prevent C.Q.
29
To the extent that RSCS argues that the parties “otherwise
agreed” to a specific stay-put school, the amendment
explicitly states that RSCS “is not offering” Prentice as the
specified stay-put school, not that the parties agreed that
Prentice would not be the specified stay-put school or that
another school would be designated school for stay-put
purposes.
River Springs ignores this finding and writes its brief as though the District
Court had found the opposite. E.g., AOB at 24. River Springs presented no argument
on why the District Court’s finding on this issue was clearly erroneous, and so it has
not met its burden to have this factual finding questioned. Cf. id. at 20–30; Matthews,
362 F.3d at 1180; Honig, 484 U.S. at 328 (placing burden on school district to
provide sufficient reasons to alter the status quo); see 20 U.S.C. § 1414(a)(1)(d)(i)
(parental consent required to validate IEP); 34 C.F.R. § 300.9 (same). Even if River
Springs had advanced that argument, it would have failed because the Ninth Circuit
heavily relies on district courts when assessing the existence or terms of parties’
agreements. See, e.g., F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 152
F.3d 925, 925 (9th Cir. 1998); Family Mortg. Corp. No. 15 v. Greiner, 279
Fed. Appx 561, 563 (9th Cir. 2008) (determining district court did not clearly err
when it found an intent to agree, despite contradictory evidence). As such, the Carve-
out provision was not part of C.Q.’s IEP and thus it does not govern her Stay Put
placement.
30
b. As Written and Applied, the Carve-out Provision Violates
Stay Put’s Mandate
Stay Put commands continuity. Joshua A., 559 F.3d at 1039–40. As written
and applied, the Carve-out Provision leaves C.Q. with no current educational
placement because it is not part of a multi-stage IEP. [See ER 42, 45–46; cf. N.E.,
842 F.3d at 1097.] As such, the OAH was unable to identify C.Q.’s placement and
so it left her with no placement at all. [ER 42, 45–46.] This Circuit cannot approve
of an IEP provision with this effect. If approved, the Carve-out Provision would
leave students with an impossible choice: challenge an IEP, request Stay Put, and be
without education; or forego challenging an IEP and accept whatever services the
district offers. That is the antithesis what the IDEA contemplates. See 20 U.S.C. §
(mandating that parents and educators work together to develop IEP); 34 C.F.R. §
standard applies to this case, and C.Q.’s current educational placement was Prentice
NPS. As such, this panel must affirm the District Court’s factual findings and legal
ruling.
31
IV. This Panel Must Affirm the District Court’s Order Even If It Reviews the
Order Under the Traditional Injunction Tests, Because C.Q. Proffered
Evidence That Removal from Prentice Would Devastate Her Educational
Progress
In the Ninth Circuit, a party may choose between one of two tests to obtain a
satisfy both.
Under the “sliding scale” test, a plaintiff can obtain a preliminary injunction
by showing “that serious questions going to the merits were raised and the balance
of hardships tips sharply in the plaintiff’s favor.” Turner v. Clark County, 2017 WL
4274161, at *1 (D. Nev. Sept. 25, 2017) (quoting Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011)). The plaintiff must show “a
relationship between the injury claimed in the motion . . . and the conduct asserted
in the underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr.,
First, River Springs denied C.Q. a FAPE when it removed her from Prentice.
At Prentice, C.Q. had made two years of progress in less than one year. [ER 283.]
removed her from school. Id. River Springs did not obtain C.Q.’s parents’ consent
to place her at Flabob. [ER 69:16–20, 70:1–2.] To resolve this dispute, River Springs
could have filed for a due process hearing with the OAH. See 20 U.S.C. §
(requiring parental consent to implement IEP). Instead, it pulled her from Prentice
and left her with no education at all. [ER 95, 126–152.] In doing so, River Springs
denied C.Q. a FAPE and thus violated the IDEA—and C.Q. will succeed in proving
that at the OAH. See 20 U.S.C. § 1400(c); 20 U.S.C. § 1415(a); W.G. v. Bd. of Tr. of
Target Range Sch. Dist., 960 F. 2d 1479 (9th Cir. 1992); Van Duyn v. Baker Sch.
Second, C.Q. will likely succeed in challenging the Flabob placement because
Flabob cannot provide the services to which C.Q.’s IEP entitles her. Flabob is a
primarily a “home study” program targeted towards students who are interested in
primarily employs instructors that are current and former pilots. It specializes in
teaching ground school, robotics, engineering, rocketry, and office classes. Id.
Flabob only provides up to four days per week of core classroom instruction. [ER
5
See Springcharterschools.org/programs (Last Accessed May 13, 2018);
http://springscharterschools.org/programs/riverside/flabob-airportpreparatory-
academy
33
286.] Moreover, Flabob does not employ credentialed teachers; instead, it employs
that would prevent it from meeting C.Q.’s needs. For example, Flabob students
that would not meet C.Q.’s literacy needs. [ER 119-20.] Moreover, C.Q. needs to
participate in a social group with age-matched peers with similar language levels to
the best vehicle to treat C.Q.’s anxiety, avoidance, and obsessions. [ER 121 at ¶ 15.]
Flabob does not provide CBT or any treatment in C.Q.’s area of need. Id. Likewise,
Flabob is not an NPS and therefore lacks the ability to provide the highly-structured
learning environment that C.Q. requires. The lack of credentialed teachers also
rendered Flabob inadequate. [ER 120-21 at ¶¶ 12-14.] As such, C.Q. has shown
specialized academic instruction, and intensive supports and services. [See ER 102-
34
103, 117 at ¶¶ 5-6, 124 at ¶ 9 (describing C.Q.’s disabilities), 120-21 at ¶¶ 8, 13, 15.]
Prentice NPS provided these services to C.Q. Id. Specifically, Prentice offers
technology therapist, and a program specialist assigned to every child. Prentice has
expression. Prentice features a small classroom size and direct, explicit, leveled
instruction, which helps students to build their skills and confidence. Id.
C.Q.’s treating Psychiatrist, Dr. Nelson, opined that C.Q. would suffer severe
academic, social, emotional, and behavioral regression upon removal from Prentice.
[ER 125 at ¶¶ 13-14.] Specifically, the psychiatrist indicated that C.Q. was finally
atmosphere, and she would not receive these benefits elsewhere. Id. at ¶¶ 7, 13-14.
35
River Springs unilaterally terminated funding for C.Q.’s tuition at Prentice on
March 23, 2018. [ER 95.] Prentice allowed C.Q. to continue her attendance after this
date, but her parents were ultimately forced to remove C.Q. from Prentice on April
19, 2018 due to a lack of funding. [See ER 294 at ¶13.] C.Q. was then without
¶¶ 10-11, 13-14; see 122 at ¶¶ 21-23; 124-25 at ¶¶ 7, 13-14.] The sudden disruption
in C.Q.’s routine and isolation from her peers exacerbated her emotional condition,
and she is at risk of increased harm from her Depression, Social Phobia, Generalized
Based on this evidence, the District Court found that “the several month
harm.” [ER 38, fn. 1.] That finding cannot be disturbed absent clear error. See
Matthews, 362 F.3d at 1180. That hardship pushes the equities far towards C.Q.
need only to provide funding for C.Q.’s placement at Prentice. The law already
places that obligation on River Springs, so River Springs cannot claim that this
changes the weight of the equities. Cf. Van Duyn v. Baker Sch. Dist., 502 F. 3d 811,
36
The equities favor C.Q. As such, C.Q. has satisfied the sliding scale analysis
Under Winter, a plaintiff must show: (1) a likelihood of success on the merits;
(2) a likelihood of irreparable harm in the absence of injunctive relief; (3) that the
equities tip in her favor; and (4) that an injunction is in the public interest. Winter v.
As discussed in section IV(A)(1), C.Q. will likely succeed on the merits of her
due process case because: River Springs denied her a FAPE; the proposed Flabob
placement is not an NPS and therefore violates C.Q.’s operative IEP; and parents did
As discussed in section IV(A)(2), C.Q. presented evidence that she would and
did suffer irreparable harm if removed from Prentice NPS. The District Court found
such irreparable harm, and that finding cannot be disturbed absent clear error. See
37
3. The Equities Favor C.Q. Because River Springs Need Only to
Maintain the Status Quo to Curb the Palpable Harm C.Q. Has
Suffered and Will Suffer
As discussed in section IV(A)(2), the equities favor C.Q. because she faces
River Springs faces only the obligation to pay for her education (i.e., provide her a
FAPE).
policy is to preserve that access. 20 U.S.C. § 1415(j); Joshua A, 559 F.3d at 1039
(“It is unlikely that Congress intended [the] protective [Stay Put] measure to end
suddenly and arbitrarily before the dispute is fully resolved.”). The United States
Supreme Court agrees: “[Stay Put] is unequivocal in its mandate that ‘the child shall
intent to strip schools of the unilateral authority they had traditionally employed to
C.Q. has satisfied both preliminary injunction tests. As such, the District
Court’s order must be affirmed regardless of whether this Panel applies Johnson or
Joshua A.
38
V. CONCLUSION
This case exemplifies the exact educational disruption which Stay Put seeks
to prevent. The IDEA cannot tolerate an approach that would so explicitly denigrate
its purpose. As such, this Panel must hold that the automatic injunction standard
applies to this case and affirm the District Court’s order granting C.Q.’s request for
Stay Put at Prentice NPS. In the alternative, it must rule that C.Q. satisfied both
preliminary injunction tests and affirm the District Court’s order on that ground.
By:
David G. Greco
39