NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3741
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L.Y., on behalf of J.Y., and
ELYSIAN CHARTER SCHOOL OF HOBOKEN,
Appellants
v.
BAYONNE BOARD OF EDUCATION
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-09-cv-04422)
District Judge: Honorable Stanley R. Chesler
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 16, 2010
Before: FISHER and COWEN, Circuit Judges, and PRATTER,* District Judge.
(Filed: June 10, 2010 )
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OPINION OF THE COURT
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*
Honorable Gene E.K. Pratter, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
PRATTER, District Judge.
L.Y., on behalf of her son, J.Y., and Elysian Charter School of Hoboken appeal
from the Order of the United States District Court for the District of New Jersey denying
their motion for an injunction to entitle J.Y. to attend a private, out-of-district school with
educational programs for his learning disabilities during the pendency of a dispute with
the Bayonne Board of Education over J.Y.’s 2009-2010 Individualized Education
Program (“IEP”). We will affirm.
I.
As we write only for the parties, who are familiar with the factual context and
procedural history of the case, we will set forth only those facts necessary to our analysis.
J.Y. is a 13-year-old boy living in Bayonne, New Jersey. In 2002, he began
attending Elysian Charter School of Hoboken (“Elysian”), located in Hoboken, New
Jersey. Elysian is a charter school financed from local tax levies and state and federal aid.
In 2002, Elysian’s IEP team performed an evaluation of J.Y. and classified him as
having learning disabilities requiring special instruction. At that time, pursuant to the
Individuals with Disabilities Education Act (“IDEA”) and New Jersey state law, Elysian
developed an IEP for J.Y. that included special reading and language instruction. The
IEP Team at Elysian developed an IEP for J.Y. each year thereafter.
In 2009, Elysian’s IEP Team determined that J.Y. should be placed at the
Community School, a private school for disabled children located outside of the Bayonne
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School District. The IEP Team included this placement in J.Y.’s IEP for the 2009-2010
academic year (the “June 9, 2009 IEP”), and J.Y.’s mother, L.Y., agreed in writing to this
placement on June 9, 2009. The IEP indicated that upon obtaining L.Y.’s signature, it
would be “implemented,” with the Community School placement beginning in September
2009.
The Bayonne School District (“Bayonne”) did not participate in the creation of the
June 9, 2009 IEP. However, as required by New Jersey law, Elysian informed Bayonne
about the IEP. Exercising its statutory right to contest the Community School placement
because it is responsible for paying the requisite tuition, Bayonne initiated a due process
hearing with the Department of Education, claiming that an in-district school placement
would provide J.Y. with a free and appropriate public education in the least restrictive
environment among non-disabled children. L.Y. cross-petitioned on J.Y.’s behalf for a
“stay-put” order placing J.Y. at the Community School during the pendency of the
administrative proceedings. Her request was denied.
L.Y. then filed a complaint in federal court, alleging violations of the IDEA. She
also requested an injunction requiring J.Y. to be placed at the Community School and
requiring Bayonne to pay his tuition. The District Court determined that J.Y. should
remain at Elysian during the pendency of the dispute, and denied L.Y.’s request for a
preliminary injunction.
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Specifically, the District Court rejected L.Y.’s argument that J.Y.’s “current
education placement” under the IDEA was the Community School. The District Court
noted that at the time Bayonne initiated proceedings to contest the adequacy of the June 9,
2009 IEP, J.Y. was not receiving instruction under that IEP because he was not yet
attending the Community School, and the terms of the IEP did not call for that placement
to begin until September 2009. The District Court also rejected Appellants’ argument
that the IDEA’s “stay-put” provision empowers a school and a child’s parents to agree on
the appropriate educational placement while an IEP dispute is pending because
interpreting the “stay-put” provision in that way would negate Bayonne’s statutory right
to challenge the placement under New Jersey law. Finally, the District Court found that
L.Y. was not entitled to a preliminary injunction.
L.Y. now appeals.
II.
The District Court exercised jurisdiction under 20 U.S.C. § 1415(i)(3) and 28
U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review of whether the District Court applied the correct legal
standards under the IDEA in determining J.Y.’s then current educational placement. L.E.
v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006); Drinker by Drinker v.
Colonial School Dist., 78 F.3d 859, 865 (3d Cir. 1996) (holding that the question of what
constitutes a student’s “current educational placement” is one of law). We review the
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denial of a motion for a preliminary injunction for an “abuse of discretion, a clear error of
law, or a clear mistake on the facts.” Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153,
158 (3d Cir. 1999) (internal quotations and citation omitted).
III.
The IDEA requires that a state receiving federal education funding provide a “free
appropriate public education” (“FAPE”) to disabled children. 20 U.S.C. § 1412(a)(1).
School districts provide a FAPE by designing and administering a program of
individualized instruction that is set forth in an IEP. 20 U.S.C. § 1414(d). The IEP must
be reasonably calculated to enable the child to receive meaningful educational benefits in
light of the child’s intellectual potential. Shore Reg’l High Sch. Bd. of Ed. v. P.S., 381
F.3d 194, 198 (3d Cir. 2004) (internal quotations and citation omitted).
The IDEA frequently has been described as a model of cooperative federalism.
Schaffer v. Weast, 546 U.S. 49, 52 (2005). It “leaves to the States the primary
responsibility for developing and executing educational programs for handicapped
children, [but] imposes significant requirements to be followed in the discharge of that
responsibility.” Bd. of Educ. v. Rowley, 458 U.S. 176, 183 (1982). To that end, the
IDEA requires that each state receiving federal funds ensure that state rules, regulations,
and policies conform to the purposes of the IDEA. 20 U.S.C. § 1407.
Under New Jersey law, when a disabled student attends a charter school, that
school is responsible for providing special education services to that student, including
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working with a child’s parents to develop an IEP. N.J. Stat. Ann. § 18A:36A-11(b). The
school district where the child resides, however, bears fiscal responsibility for a child’s
special education services when the IEP requires placement at a private school. Id. For
that reason, New Jersey law provides that:
Within 15 days of the signing of the individualized education plan, a charter
school shall provide notice to the resident district of any individualized
education plan which results in a private day or residential placement. The
resident district may challenge the placement within 30 days in accordance
with the procedures established by law.
Id.
A. J.Y.’s “Stay-Put” Placement
The IDEA states that “[d]uring the pendency of any proceedings conducted
pursuant to this section . . . the child shall remain in the then current educational
placement of such child.” 20 U.S.C. § 1415(j). This section of the IDEA is referred to as
the “stay-put” provision. The stay-put provision operates as an automatic preliminary
injunction. Drinker, 78 F.3d at 864.
The IDEA does not define “current educational placement.” We have held that the
current educational placement “refers to the operative placement actually functioning at
the time the dispute first arises. If an IEP has been implemented, then that program’s
placement will be the one subject to the stay put provision.” Id. at 867 (quoting Thomas
v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir.1990)). If no IEP is in effect
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when the dispute arises, the stay-put placement is that under which the child is actually
receiving instruction at the time the dispute arises. Id.
Appellants here argue that the only valid, functioning IEP in place at the time the
dispute arose was the June 9, 2009 IEP calling for J.Y.’s placement at the Community
School. Therefore, Appellants argue that the Community School is J.Y.’s stay-put
placement for the pendency of the underlying proceedings.
While determining a child’s current educational placement at the time a dispute
begins may appear straightforward, in this case the determination is complicated by the
fact that J.Y.’s 2008-2009 school year ended on June 16, 2009. When Bayonne initiated
its challenge to the Community School placement on July 8, 2009, J.Y. was not actively
receiving instruction under either the most recent un-challenged IEP for the just
completed 2008-2009 school year, or the disputed upcoming June 9, 2009 IEP.
Indeed, the June 9, 2009 IEP had not been implemented in any true sense. The
June 9, 2009 IEP called for J.Y.’s placement at the Community School to begin in
September 2009. Appellants cite to a New Jersey regulation providing that an IEP may
be implemented sooner where, as here, a parent agrees in writing. See N.J. Admin. Code
§ 6A:14-2.3(h)(2). However, this regulation, which does not require that an IEP be
implemented when a parent agrees in writing, must be read in conjunction with the
aforementioned New Jersey statute permitting resident school districts to object to private
placement determinations made by charter schools. If an IEP were considered
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“implemented” as soon as it was signed by the student’s parent, the school district’s right
to object in advance would be illusory. We decline to adopt any such interpretation of the
New Jersey laws at issue here, as we generally adhere to the principle that statutes relating
to the same subject matter should be construed harmoniously. See Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 879 (1994) (“[C]ourts should construe statutes . . . to
foster harmony with other statutory and constitutional law.”); Hernandez v. Kalinowski,
146 F.3d 196, 200 (3d Cir. 1998) (noting that when interpreting a statute, courts will look
to statutes on the same subject and the object and policy of the law).
Neither the plain language of the IDEA, New Jersey laws implementing the IDEA,
nor our prior case law expressly cover the situation presented here. To endorse the plain
meaning of the statutory language, we can look to the purpose of the IDEA’s stay-put
provision if guidance is needed in interpreting its meaning and application here. Alcoa
Inc. v. United States, 509 F.3d 173, 180 (3d Cir. 2007) (“To resolve this ambiguity in the
language of the statute, we will turn to the congressional intent revealed in the history and
purpose of the statutory scheme.”)
The stay-put provision “represents Congress’ policy choice that all handicapped
children, regardless of whether their case is meritorious or not, are to remain in their
current education placement until the dispute with regard to their placement is ultimately
resolved.” Drinker, 78 F.3d at 864. We have consistently stated that the purpose of the
stay-put provision is the preservation of the status quo during disputes about a child’s
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educational placement. Pardini, 420 F.3d at 190 (“In Drinker, we stressed the importance
of maintaining the status quo when identifying ‘the then current educational placement’
for purposes of the stay-put rule.”); J.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 272
(3d Cir. 2002) (“Stay-put orders are designed to maintain the status quo during the course
of proceedings.”); Drinker, 78 F.3d at 865 (“[T]he purpose of the ‘stay put’ is to preserve
the status quo of the child’s functioning placement and program.” (internal quotations and
citation omitted)).
Because J.Y. was on summer break when this dispute arose, strictly speaking
neither Elysian nor the Community School actually represented J.Y.’s stay-put placement.
Nevertheless, we hold that having J.Y. remain at Elysian while the dispute with regard to
his placement is resolved hues closest to the plain meaning of the statutes as well as the
congressional intent of maintaining the status quo, inasmuch as J.Y. never attended the
Community School and never received instruction under the June 9, 2009 IEP. Placing
him at the Community School at this stage would not be consistent with the purpose of
the stay-put provision to maintain the status quo until the conclusion of the due process
hearings, during which J.Y.’s ultimate appropriate placement will be determined.
Appellants argue that even if the Community School is not considered J.Y.’s then-
current placement, the stay-put provision empowers a school and a child’s parents to
agree on the appropriate placement while an IEP dispute is pending. Appellants cite to a
portion of Section 1415(j) of IDEA, which states that a child must stay in the “current
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educational placement” unless the state or Local Education Agency (“LEA”) and parents
agree to a different placement. 20 U.S.C. § 1415(j). Appellants argue that Elysian, and
not Bayonne, is the relevant LEA here because it is the entity with administrative control
over, and responsibility for, providing special education and related services to its
disabled students. In response, Bayonne argues that under New Jersey regulations,
charter schools are considered LEAs only for the limited purpose of applying for federal
funds. See N.J. Admin. Code § 6A:11-4.1 (“A charter school shall be a local education
agency only for the purpose of applying for Federal entitlement and discretionary
funds.”).
Regardless of which entity is considered the LEA, Elysian and L.Y. cannot dictate
placement of J.Y. at the Community School over Bayonne’s objections. IDEA’s stay-put
provision should be read in harmony with N.J. Stat. Ann. § 18A:36A-11(b), which
permits a school district to object to a placement before a child is moved, especially given
the IDEA’s goal of cooperative federalism. See FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000) (noting that “it is a fundamental canon of statutory
construction that the words of a statute must be read in their context and with a view to
their place in the overall statutory scheme,” and that “[a] court must therefore interpret the
statute as a symmetrical and coherent regulatory scheme . . . and fit, if possible, all parts
into an harmonious whole . . .” (internal quotations and citations omitted)). Because
Section 1415(j) of IDEA does not anticipate a situation in which both a charter school and
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the school district have an interest in a child’s education placement, we do not construe
Section 1415(j) as conflicting with the application of N.J. Stat. Ann. § 18A:36A-11(b) to
this case.
B. Appellants’ Motion for a Preliminary Injunction
In order for a party’s request for a preliminary injunction to be granted, the party
must show (1) a reasonable probability of success on the merits, (2) that it will be
irreparably harmed if the injunction is not granted, (3) that the non-moving party will not
suffer greater harm if the injunction is granted, and (4) that the public interest at stake
favors the granting of an injunction. Child Evangelism Fellowship of New Jersey, Inc. v.
Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004). We have also made clear that
if the moving party fails to demonstrate either a likelihood of success or irreparable harm,
an injunction should not be granted. In re Arthur Treacher’s Franchisee Litig., 689 F.2d
1137, 1143 (3d Cir. 1982).
The underlying issue in this case is whether the June 9, 2009 IEP will provide J.Y.
with a FAPE in the least restrictive environment. The District Court held that resolving
this issue is a fact-intensive inquiry, and that it could not conclude that L.Y. had
demonstrated a likelihood of success on the merits. On appeal, Appellants focus their
efforts on demonstrating irreparable injury, devoting scant attention to the likelihood of
success prong. Instead, they emphasize that L.Y. should not remain at the Eylsian school
during the pendency of this dispute. For its part, Bayonne contends that its proffered
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placement of J.Y. at another school in the Bayonne school district will provide J.Y. with a
placement in the least restrictive environment alongside non-disabled students. Bayonne
contends that the Community School, in contrast, cannot provide a FAPE to J.Y. because
it is a school comprised entirely of students classified with similar learning disabilities.
Based on this record, we cannot say that the District Court abused its discretion in
denying injunctive relief because Appellants failed to carry their burden of proving a
reasonable probability of success on the merits. Because this failure is a sufficient basis
for the denial of a preliminary injunction, it is unnecessary for us to reach their remaining
arguments. Id.
IV.
For the foregoing reasons, the District Court’s Order denying Appellants’ request
for injunctive relief will be affirmed.
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