N.E. Ex Rel. C.E. v. Seattle School District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

N. E., by and through his parents No. 15-35910 C.E. and P.E.; C. E.; and P. E., Plaintiffs-Appellants, D.C. No. 2:15-cv-01659-JLR v.

SEATTLE SCHOOL DISTRICT, OPINION

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted May 5, 2016 Seattle, Washington

Filed November 17, 2016

Before: Susan P. Graber, Marsha S. Berzon, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Berzon SUMMARY*

Individuals with Disabilities Education Act

The panel affirmed the district court’s denial of plaintiffs’ motion for a preliminary injunction regarding a student’s “stay-put” placement pending administrative proceedings under the Individuals with Disabilities Education Act.

The student had received an Individualized Education Program (IEP) that encompassed two stages. Before the start of the second stage, to which the student’s parents did not agree, the family moved. The new school district proposed a class setting that was…

Dissent by Judge BERZON

OPINION

Plaintiff N.E. is a child with a disability who, in accordance with the Individuals with Disabilities Education Act (“IDEA”), has received a series of Individualized Education Programs (“IEP”). In May 2015, three-and-a-half weeks before the 2014-15 school year ended, the Bellevue School District produced an IEP for N.E. that encompassed two stages: The first stage would begin immediately and the second would begin at the start of the 2015-16 school year. N.E.’s parents, Plaintiffs C.E. and P.E., allowed their son to finish the school year in accordance with the first stage of the IEP but did not agree to the second stage. Over the summer, the family moved to Seattle. Just before the start of the 2015-16 school year, Defendant Seattle School District proposed a class setting for N.E. that was similar to the second stage of the May 2015 IEP. Plaintiffs objected and sought a “stay-put” placement.

The pivotal issue is what “educational placement” was “then-current,” 20 U.S.C. § 1415 (j), after N.E.’s family moved to Seattle in the summer of 2015 but before the 2015-16 school year began. Plaintiffs contend that the “then-current educational placement”…

Dissenting:

I respectfully, but emphatically, dissent.

The majority applies the IDEA’S “stay-put” provision to allow N.E. to be placed in an entirely new learning environment, more restrictive than any in which he had previously been enrolled, over his parents’ objection. The “stay-put” provision was designed precisely to preclude transferring students to new, more restrictive environments while theft parents challenge the transfer. None of the majority’s explanations for refusing to enforce the statute’s promise that children will remain in the existing placement while challenges go forward are persuasive, and each would open a large gap in the IDEA’S “stay-put” assurance.

I.

The majority opinion is short on facts. The facts matter in this case. I therefore fill in the gaps.

N.E. is an “intelligent child, [who] performs well when he desires to be engaged.” Overall, he was, as of the spring of 2015, “very strong academically. 1 He loves to read. He has a great knowledge base.” He “qualifies for special education services ... due to an ADHD diagnosis,” and because he needs “specially designed instruction in Social Emotional” development.

*1099 N.E. was enrolled as a student…