S. C. v. Lincoln County School District ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
S.C. by her mother and next friend, No. 21-35242
K.G.,
Plaintiff-Appellant, D.C. No.
6:20-cv-02277-
v. MC
LINCOLN COUNTY SCHOOL DISTRICT,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael McShane, District Judge, Presiding
Argued and Submitted August 31, 2021
Seattle, Washington
Filed October 18, 2021
Before: A. Wallace Tashima and Ronald M. Gould, Circuit
Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Rakoff
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 S.C. V. LINCOLN COUNTY SCHOOL DISTRICT
SUMMARY **
Individuals with Disabilities Education Act
The panel reversed the district court’s denial of a
student’s parent’s request for a “stay put” order under the
Individuals with Disabilities Education Act and remanded
for entry of a stay put order requiring the student’s placement
at an educational center at the expense of the defendant
school district.
In due process proceedings, an administrative law judge
concluded that the school district had failed to provide the
student, who has Prader-Willi Syndrome, with a free
appropriate public education because she required “total
food security” in a schoolwide environment to obtain a
meaningful educational benefit at school. As a remedy, the
ALJ ordered the student’s placement at the educational
center, which treats students with Prader-Willi Syndrome
and provides total food security in the overall school
environment, at the school district’s expense. After the
school district failed either to appeal or to comply with the
ALJ’s order, the student’s parent sought a stay put order in
the district court. The district court denied a stay put order
or preliminary injunction on the ground that the parent
needed to challenge in further administrative proceedings a
September 2020 individualized education program (“IEP”)
not covered by the ALJ’s decision.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
S.C. V. LINCOLN COUNTY SCHOOL DISTRICT 3
The IDEA’s stay put provision provides that while an
administrative appeal or civil action filed by a “party
aggrieved” by an ALJ’s decision is ongoing, the student
must remain in her then-current educational placement. The
panel held that a “party aggrieved” under 20 U.S.C.
§ 1415(i)(2)(A) includes a parent, like the parent here, who
is aggrieved by a school district’s failure to either appeal or
comply with a final administrative order and who seeks court
enforcement of that final administrative order. Accordingly,
the parent properly sought relief in the district court.
The panel held that the district court incorrectly
interpreted the ALJ order as providing two alternative
simultaneous remedies, rather than an immediate transfer to
the educational center, where the student was to remain, at
the school district’s expense, until the ALJ determined that
a new IEP addressed all the perceived inadequacies in her
prior setting.
The panel held that the district court also erred by failing
to engage in an analysis of stay put and how the ALJ order
changed the student’s placement. The panel held that under
the appropriate analysis, the ALJ order changed the student’s
legal placement to the educational center. Accordingly,
under the IDEA’s stay put provision, this new placement
must be made and maintained. The panel held that because
a stay put order functions as an automatic injunction,
consideration of irreparable harm or other traditional
preliminary injunction factors was not necessary.
4 S.C. V. LINCOLN COUNTY SCHOOL DISTRICT
COUNSEL
Suzanne M. Gall (argued), Suzanne M. Gall LLC, Portland,
Oregon; Alice K. Nelson, Nelson Koster, Tampa, Florida;
Andrée Larose, Morrison Sherwood Wilson Deola PLLP,
Helena, Montana; for Plaintiff-Appellant.
Nancy J. Hungerford (argued) and Richard G. Cohn-Lee,
Hungerford Law Firm, Oregon City, Oregon, for Defendant-
Appellee.
Ellen Marjorie Saideman (argued), Law Office of Ellen
Saideman, Barrington, Rhode Island; Selene Almazan-
Altobelli, Council of Parent Attorneys and Advocates, Inc.,
Towson, Maryland; for Amicus Curiae Council of Parent
Attorneys and Advocates, Inc.
OPINION
RAKOFF, District Judge:
This case asks us to consider the application of the so-
called “stay put” provision of the Individuals with
Disabilities in Education Act (“IDEA”). In this case, an
administrative law judge, after considering a due process
challenge to the educational program of a child with
disabilities, ordered that the child (“S.C.”) be placed at an
educational center (the “Latham Center”) at the expense of
the Lincoln County School District (the “school district”).
Although the school district never appealed the order, it
failed to comply with the order. The child, by her mother
(“K.G.”), therefore sought a stay put order from a federal
district court requiring that S.C. be placed at the Latham
Center at the school district’s expense; but the district court
S.C. V. LINCOLN COUNTY SCHOOL DISTRICT 5
denied the request. This was error, and, accordingly, we
reverse and direct entry of the stay put order.
BACKGROUND
I. The IDEA’s Procedural Safeguards
The IDEA allocates federal funds to states on the
condition, among others, that the state provide all children
with disabilities a “free appropriate public education”
(“FAPE”). 20 U.S.C. § 1412(a)(1)(A). A school district
provides a FAPE to a child with disabilities by devising an
individualized education program (“IEP”) for each such
child. An IEP is a document that identifies the child’s
particular educational needs, outlines the services required
to meet those needs, and sets measurable goals for the child’s
progress. 20 U.S.C. § 1414(d)(1)(A). In any given case, the
IEP is developed and regularly updated by the IEP “team,”
which involves the child’s parent or guardian, a regular
education teacher, a special education teacher, a
representative of the local educational agency, and an expert
regarding the child. 20 U.S.C. § 1414(d).
In addition to setting out requirements for IEPs, the
IDEA provides specific procedural safeguards in relation to
a school district’s provision of a FAPE. 20 U.S.C. § 1415(a).
If a parent is not satisfied with an IEP or has another
complaint about the school district’s provision of the FAPE,
the parent can initiate an administrative due process
challenge. In Oregon (where S.C. is located), the challenge
proceeds before an administrative law judge (“ALJ”), who
reviews the complaint, conducts a hearing, and can exercise
broad authority to order appropriate remedies, including
education services to be paid for by the school district. See
20 U.S.C. § 1415(i)(2)(C)(iii). The ALJ’s decision is final
6 S.C. V. LINCOLN COUNTY SCHOOL DISTRICT
and binding unless either party appeals. 20 U.S.C.
§ 1415(i)(1)(A).
In addition to any administrative appeal, “[a]ny party
aggrieved” by the ALJ’s findings and order “shall have the
right to bring a civil action” with respect to the due process
complaint in an appropriate state court or federal district
court. 20 U.S.C. § 1415(i)(2)(A). However, while any such
proceeding is ongoing, the IDEA includes a requirement that
the child remain in their then-current educational
placement—a requirement known as the “stay put”
provision. 20 U.S.C. § 1415(j) (“[D]uring the pendency of
any proceedings conducted pursuant to [§ 1415], 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 . . . .”). As discussed below, however,
Department of Education regulations deem an ALJ order to
change placement, if not appealed by the parent or local
educational agency, as a de facto agreement to treat the situs
of the court-ordered placement as the “then-current”
placement. See 34 C.F.R. § 300.518(d).
Stay put functions as “an ‘automatic’ preliminary
injunction,” and the moving party need not show the
traditionally required preliminary injunction factors to
obtain relief. See Joshua A. v. Rocklin Unified Sch. Dist.,
559 F.3d 1036, 1037 (9th Cir. 2009) (internal citations
omitted). And while stay put most commonly involves
maintaining the status quo, where a parent prevails in an
administrative hearing and an administrative ruling agrees
with the parent that a different placement is appropriate,
then, as noted, it is that new placement that must be made
and maintained for purposes of the stay put provision. See
Burlington v. Mass. Dep’t of Educ., 471 U.S. 359, 372–73
(1985) (noting that a decision in the parent’s favor in an
S.C. V. LINCOLN COUNTY SCHOOL DISTRICT 7
administrative due process hearing, if not appealed, “would
seem to constitute agreement by the State to the change of
placement”); 34 C.F.R. § 300.518(d) (codifying Burlington
that “[i]f the hearing officer in a due process hearing . . .
agrees with the child’s parents that a change of placement is
appropriate, that placement must be treated as an agreement
between the State and the parents for purposes of [stay
put]”).
II. S.C.’s Due Process Challenge
S.C. is a teenage girl who attends school in the
Defendant-Appellee Lincoln County School District. S.C.
has a severe form of Prader-Willi Syndrome (“PWS”), a
genetic condition that disrupts the body’s appetite control
and causes anxiety, major depressive disorder, and
developmental delays. Because of PWS, S.C. experiences
intense food-seeking thoughts that lead to poor impulse
control and behavioral issues, including verbal and physical
aggression. Because consistent and rigid routines concerning
food help control PWS, treatment for PWS typically
includes total food security (“TFS”), a system in which food
is present at mealtimes but otherwise kept locked up and out
of sight.
S.C. has been receiving special education services in the
school district since the 2015–2016 school year through the
provision of regularly updated IEPs. In May 2020, S.C.’s
mother, K.G., filed an administrative challenge claiming that
the school district was not providing a FAPE to S.C. While
this challenge was pending, the school district finalized a
new IEP for S.C. on September 18, 2020, approved by the
IEP “team” but not by S.C. or K.G. However, because the
ALJ’s due process review is limited by law to the two years
preceding the filing of the due process complaint, the ALJ’s
review authority did not extend past May 21, 2020. 20
8 S.C. V. LINCOLN COUNTY SCHOOL DISTRICT
U.S.C. § 1415(f)(3)(c). As a result, and as the ALJ stated in
her decision, the ALJ’s ruling did not cover the September
2020 IEP.
In October 2020, the ALJ conducted a remote hearing,
spanning over fifty hours in total, on K.G.’s due process
complaint. On December 22, 2020, the ALJ issued a
seventy-page decision, finding that the school district had
not provided S.C. a FAPE during the period under review
(May 21, 2018 to May 21, 2020). In so finding, the ALJ
concluded, among other things, that S.C. required TFS in a
school-wide environment to obtain a meaningful educational
benefit at school, and that the previous IEPs only provided
S.C. with TFS by placing her in a “Structured Learning
Center” removed from the regular school environment.
As a remedy for the school district’s failure to provide a
FAPE, the ALJ ordered that S.C. be placed at the Latham
Center, a residential facility that treats students with PWS
and provides TFS in the overall school environment. The key
provision of the ALJ order reads as follows:
“The [School] District is to pay the cost of
enrolling the Student at the Latham Center,
including non-medical care, room and board,
for the period commencing on the first day of
the winter 2021 semester until the District
provides TFS in school-wide setting along
with an IEP which addresses all of the
inadequacies identified in this order or the
next annual IEP which appears to be
September 2021” (emphasis added).
The school district did not appeal; but neither did it
comply with the order. Specifically, it failed to arrange for
S.C. to be enrolled at the Latham Center at the school
S.C. V. LINCOLN COUNTY SCHOOL DISTRICT 9
district’s expense. Accordingly, K.G., on behalf of S.C.,
filed suit in federal court on January 6, 2021, seeking a stay
put order or preliminary injunction requiring the school
district to comply with the ALJ order and pay for S.C.’s
placement at the Latham Center.
III. The District Court’s Denial of a Stay Put Order
On March 22, 2021, the district court issued an opinion
denying a stay put order or preliminary injunction on the
grounds that K.G. needed to challenge the September 2020
IEP in further administrative proceedings. The district court
did not analyze how the ALJ order impacted stay put, but
instead focused on whether the September 2020 IEP
addressed the deficiencies described in the ALJ’s decision,
on who should so decide, and on what should happen until
such a decision was made. The district court found that
because the ALJ did not rule on whether the September 2020
IEP would or would not actually address the deficiencies the
ALJ identified in the earlier IEPs, this question “must be
answered at the administrative level, and not on an expedited
basis during an emergency motion for a stay put order before
this Court.” In other words, the district court incorrectly read
the issue as S.C. rushing to court before exhausting
administrative challenges to the September 2020 IEP, rather
than analyzing what was an emergency motion before the
court for a stay put order to enforce a favorable ALJ ruling
that required S.C.’s placement at the Latham Center pending
further administrative or judicial proceedings. K.G. timely
appealed.
STANDARD OF REVIEW
We review a denial of a preliminary injunction for abuse
of discretion. N.D. v. Haw. State Dep’t of Educ., 600 F.3d
1104, 1111 (9th Cir. 2010) (citing Earth Island Inst. v. U.S.
10 S.C. V. LINCOLN COUNTY SCHOOL DISTRICT
Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003)). This
includes a stay put order in IDEA proceedings. See N.E. v.
Seattle Sch. Dist., 842 F.3d 1093, 1095–96 (9th Cir. 2016).
“The district court’s interpretation of the underlying legal
principles, however, is subject to de novo review and a
district court abuses its discretion when it makes an error of
law.” E. E. v. Norris Sch. Dist., 4 F.4th 866, 871 (9th Cir.
2021) (citing Sw. Voter Registration Educ. Project v.
Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc)).
ANALYSIS
As a threshold matter, we find that a “party aggrieved”
under 20 U.S.C. § 1415(i)(2)(A) includes a parent, like K.G.
here, who is aggrieved by a school district’s failure to either
appeal or comply with a final administrative order and who
seeks court enforcement of that final administrative order.
See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 115–16
(1st Cir. 2003) (concluding “that Congress could not have
intended to leave plaintiffs without an IDEA statutory
remedy when they succeed before the hearing officer and the
school system does not appeal the administrative decision
but simply fails to fulfill a continuing obligation to provide
services”). 1
The district court in this case made two errors of law:
first, it incorrectly interpreted the ALJ order as providing
two alternative simultaneous remedies, rather than an
immediate transfer to the Latham Center to be followed only
1
In their briefs, the parties question whether 42 U.S.C. § 1983 is
available to enforce an ALJ’s administrative order providing relief under
the IDEA. Because we grant the relief sought under the IDEA, there is
no need to address whether 42 U.S.C. § 1983 may be available in some
future case where it is necessary to provide a remedy.
S.C. V. LINCOLN COUNTY SCHOOL DISTRICT 11
later by another alternative; and second, it did not engage in
an analysis of stay put and how the ALJ order changed S.C.’s
educational placement.
I. The Proper Interpretation of the ALJ Order
As noted, the ALJ order reads as follows: “The [School]
District is to pay the cost of enrolling the Student at the
Latham Center, including non-medical care, room and
board, for the period commencing on the first day of the
winter 2021 semester until the District provides TFS in
school-wide setting along with an IEP which addresses all of
the inadequacies identified in this order or the next annual
IEP which appears to be September 2021” (emphasis added).
For at least four separate reasons, the ALJ order is properly
interpreted as providing a two-phase remedy, with the first
phase being S.C.’s immediate transfer to the Latham Center
on the first day of the winter 2021 semester, where S.C. is to
remain, at the school district’s expense, until the ALJ
determines that a new IEP addresses all the perceived
inadequacies in S.C.’s prior setting.
First, the plain language of the order—requiring
placement at the Latham Center “until” the school district
provides TFS schoolwide and an appropriate IEP—indicates
a two-phased remedy, rather than two alternative remedies.
By using the word “until,” as well as contemplating that
there would be no further IEP until September 2021
(although the school district wound up promulgating a new
IEP in September 2020), the order clearly mandated S.C.’s
immediate transfer to the Latham Center at the school
district’s expense. Conversely, the order nowhere provided
that the transfer could be delayed by the school district’s
expedient of issuing (prematurely) a new IEP, whose
adequacy had yet to be addressed by the ALJ (or anyone
else).
12 S.C. V. LINCOLN COUNTY SCHOOL DISTRICT
Second, interpreting the order as somehow providing
simultaneous alternative remedies is totally inconsistent
with the preceding sixty-nine pages of the ALJ decision,
which explain why immediate placement at the Latham
Center is the appropriate step. K.G. had requested either
placement at the Latham Center or remedies related to the
school district’s providing TFS and adequate IEPs. The ALJ
ordered only placement at the Latham Center and found it
“unnecessary” to address the remedies related to TFS and
IEPs in the school district “[b]ecause this order provides for
the residential placement requested . . . .” This further
indicates that this was not an alternative or conditional
remedy.
Third, the school district’s argument below and on
appeal—that the school district could unilaterally nullify the
first part of the ALJ order by developing the September 2020
IEP—is illogical and contrary to the IDEA’s procedural
safeguards. Such an interpretation would effectively
delegate the ALJ’s authority to the IEP team, undermining
the procedural safeguards outlined in the IDEA for due
process challenges and administrative review. As the
Circuits that have considered the issue have held, delegating
that determination to the IEP team does not comply with the
IDEA’s statutory scheme. M.S. v. Utah Sch. for the Deaf &
Blind, 822 F.3d 1128, 1135 (10th Cir. 2016); Bd. of Educ. of
Fayette Cnty. v. L.M., 478 F.3d 307, 317–18 (6th Cir. 2007);
Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521,
526–27 (D.C. Cir. 2005). We agree.
Fourth and finally, considering the ALJ order
conditional would require K.G. to file a new due process
challenge to the September 2020 IEP to receive the benefit
from the favorable ruling in her previous due process
challenge, even though the September 2020 IEP was
S.C. V. LINCOLN COUNTY SCHOOL DISTRICT 13
necessarily outside the two-year scope of the initial due
process review, 20 U.S.C. § 1415(f)(3)(C). This would
create an impossible scenario for a parent, one that is
inconsistent with the IDEA’s statutory scheme providing
specific procedural safeguards. Such an interpretation would
trap parents in a never-ending cycle of due process
challenges, forcing them to file a new challenge each time a
new IEP is developed, without ever enjoying the benefit of a
favorable administrative ruling on a previous due process
challenge.
For the aforementioned reasons, the ALJ order here is
properly interpreted as laying out a two-part phased remedy,
and the district court erred in considering the order as
providing for simultaneous alternative remedies, as well as
in requiring K.G. to file a new administrative challenge to
the September 2020 IEP.
II. Stay Put Requires S.C.’s Placement at Latham at
LCSD’s Expense
The district court also erred in failing to analyze stay put
and how the ALJ order changed S.C.’s educational
placement. As set out in the Department of Education’s
implementing regulations, “[i]f the hearing officer in a due
process hearing . . . agrees with the child’s parents that a
change of placement is appropriate, that placement must be
treated as an agreement between the State and the parents for
purposes of [stay put].” 34 C.F.R. § 300.518(d).
Furthermore, as this Court discussed in L.M. v. Capistrano
Unified School District, “[w]here the agency or the court has
ruled on the appropriateness of the educational placement in
the parents’ favor, the school district is responsible for
appropriate private education costs . . . .” 556 F.3d 900, 912
14 S.C. V. LINCOLN COUNTY SCHOOL DISTRICT
(9th Cir. 2009) (discussing other Circuits’ cases holding the
same). 2
The stay put order analysis in this case is thus quite
straightforward. The district court simply failed to ask how
the ALJ order changed S.C.’s educational placement. The
final and unappealed ALJ order, which required the school
district to pay for S.C. to be placed at the Latham Center on
the first day of the winter semester 2021, constituted an
agreement between the state and S.C.’s parent for purposes
of the stay put provision. As such, S.C.’s legal placement
changed to the Latham Center, either when the ALJ order
issued on December 22, 2020, or, at worst, on the first day
of the winter semester 2021. Because the stay put order
functions as an automatic injunction, consideration of
irreparable harm or other traditional preliminary injunction
factors is not necessary.
CONCLUSION
As described above, the ALJ order changed S.C.’s
educational placement to the Latham Center. This Court thus
reverses and remands with instructions to enter a stay put
order to enforce the ALJ’s order requiring S.C.’s placement
at the Latham Center, at the school district’s expense, “until
the [School] District provides TFS in school-wide setting
along with an IEP which addresses all of the inadequacies
2
While in Capistrano this Court affirmed the district court’s denial
of a stay put order on the grounds that there had not yet been an
administrative or court decision on the actual merits of the child’s
placement, 556 F.3d at 912–13, its reasoning compels the opposite
conclusion under the facts of this case, as S.C. did, in fact, receive a
favorable ALJ ruling on her due process challenge.
S.C. V. LINCOLN COUNTY SCHOOL DISTRICT 15
identified in this order . . . .” 3 To be sure, further
proceedings, whether judicial or administrative, may
consider whether the school district is providing TFS
schoolwide, as well as whether a new IEP (either the
September 2020 IEP or a subsequent IEP) provides a FAPE
that cures the deficiencies in previous IEPs that the ALJ
order identifies. Unless and until, however, the conclusion
of such proceedings changes S.C.’s educational placement,
she must be placed at the Latham Center and remain there at
the school district’s expense.
REVERSED AND REMANDED, WITH
INSTRUCTIONS.
3
However, to the extent that S.C. asks for placement at the Latham
Center for one year as compensatory education, such an order is not
warranted under the terms of the ALJ order. The ALJ order found that to
the extent that K.G. was still requesting compensatory education, K.G.
“has not presented sufficient evidence to support the request.” S.C. and
K.G. cannot argue against the district court’s effective rewriting of the
ALJ order and then ask this Court to rewrite a different part of that ALJ
order to award a new remedy, one that the ALJ explicitly rejected.