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
2 N.E. V. SEATTLE SCHOOL DISTRICT

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 similar to the second stage of the IEP.
Plaintiffs sought a “stay-put” placement consisting of the
educational setting in which the student was enrolled either
before the IEP or during the first stage of the IEP.

Affirming the district court’s denial of injunctive relief,
the panel held that a partially implemented, multi-stage IEP,
as a whole, is a student’s “then-current educational
placement.” The student’s “then-current educational
placement” therefore was the setting described in the second
stage of his IEP.

Dissenting, Judge Berzon wrote that the majority’s
application of the IDEA’s “stay-put” provision allowed the
student to be placed in a new learning environment, more
restrictive than any in which he had previously been enrolled,

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 N.E. V. SEATTLE SCHOOL DISTRICT 3

over his parents’ objection, and could not be reconciled with
the text of the IDEA or its purposes.

COUNSEL

Lauren Rebecca Hruska (argued) and Charlotte Cassady,
Cassady Law Firm, Seattle, Washington, for Plaintiffs-
Appellants.

David T. Hokit (argued), Curran Law Firm P.S., Kent,
Washington, for Defendant-Appellee.

OPINION

GRABER, Circuit Judge:

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.
4 N.E. V. SEATTLE SCHOOL DISTRICT

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” must be the educational
setting in which N.E. was enrolled either before his May 2015
IEP or, in the alternative, during the first stage of the May
2015 IEP. Defendant counters that the “then-current
educational placement” for the 2015–16 school year is the
setting described in the second stage of the May 2015 IEP.
We agree with Defendant and, accordingly, affirm the district
court’s denial of injunctive relief.

The relevant facts in this case are not disputed. N.E. was
in the third grade at Newport Heights Elementary School in
the Bellevue School District for most of the 2014–15 school
year. Until the final month of that school year, and in prior
school years, N.E. spent most of his instructional time in
general education classes. His most recent IEP reflecting that
arrangement dates from December 2014.

During the 2014–15 school year, Bellevue School District
officials reported that N.E. exhibited very serious behavioral
problems on a regular basis. As a result, the school district
began to consider changes. An IEP meeting occurred on May
26, 2015, at which Bellevue School District officials
proposed a new IEP that placed N.E. in a self-contained,
special education class for students with behavioral and
emotional disorders (“self-contained class”). Plaintiffs
objected to that proposal and wrote “disagree” on the front
sheet of the proposed IEP. Bellevue officials and Plaintiffs
also discussed where to place N.E. for the remainder of the
school year. Bellevue and Plaintiffs agreed that N.E. would
finish the final few weeks of the 2014–15 school year at a
 N.E. V. SEATTLE SCHOOL DISTRICT 5

different school. At that school, he would spend most of the
day in a one-on-two educational setting with a teacher and a
paraeducator, but with no other students (“individual class”).

One day later, on May 27, 2015, the Bellevue School
District produced the May 2015 IEP. 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. Plaintiffs received that IEP approximately
one week later, along with a prior written notice1 notifying
Plaintiffs that the Bellevue School District intended to alter
N.E.’s educational placement and that the individual class
would serve as a transition to the self-contained class.
Plaintiffs did not file an administrative due process challenge
to the May 2015 IEP and, instead, allowed N.E. to attend the
individual class until the end of the school year on June 22,
2015.

1
Pursuant to the procedural requirements of the IDEA, school
districts must provide parents with “[w]ritten prior notice . . . whenever
the local educational agency proposes to initiate or change or refuses to
initiate or change . . . the identification, evaluation, or educational
placement of the child.” 20 U.S.C. § 1415(b)(3)(A).

In addition to making the arguments discussed in text, Plaintiffs argue
that Bellevue School District committed a procedural error, in violation of
the IDEA, by sending the written notice after the school district had
already implemented stage one of the May 2015 IEP. They argue that this
error prevents the May 2015 IEP from serving as the stay-put placement.
But that argument was waived; Plaintiffs raised it only in a motion for
reconsideration, which does not suffice to preserve the issue for appeal.
Hendricks & Lewis PLLC v. Clinton, 766 F.3d 881, 998 (9th Cir. 2014).
6 N.E. V. SEATTLE SCHOOL DISTRICT

Plaintiffs moved to Seattle in the summer of 2015 and
contacted the Seattle School District to enroll N.E. Plaintiffs
requested an individual class setting similar to the one in
which N.E. had completed the prior school year.2 The school
district, however, reviewed N.E.’s records and proposed
placing him in a self-contained class similar to the one
embodied in stage two of the May 2015 IEP. Plaintiffs
objected on September 9, 2015, and filed an administrative
due process challenge. Plaintiffs also filed a “stay-put”
motion, pursuant to 20 U.S.C. § 1415(j), arguing that N.E.’s
stay-put placement was the general education class described
in the December 2014 IEP. Defendant resisted the stay-put
motion and argued that the self-contained class described in
the May 2015 IEP was N.E.’s stay-put placement.3

An administrative law judge agreed with Defendant and
determined that the self-contained class was N.E.’s stay-put
placement. Plaintiffs appealed that decision and filed a
motion with the district court seeking a temporary restraining

2
The dissent argues that a general education class with full-time
paraeducator support (the December 2014 IEP) should be considered
N.E.’s stay-put placement, and it dismisses the individual class (stage one
of the May 2015 IEP) as “understood by all concerned as temporary or
interim,” and “not reflect[ing] any considered judgment, at any point, that
the temporary placement is suitable for the long-term educational
development of the child.” Dissent at 22–23. But N.E.’s parents, citing
the recommendations of two psychologists, requested an individual class
setting when they first contacted the Seattle School District. In other
words, Plaintiffs initially sought a more isolated, not a less isolated,
environment for N.E. Had the Seattle School District acceded
immediately to Plaintiffs’ wishes, N.E. would not have been placed in a
general education class.
3
Plaintiffs do not argue that Defendant’s proposal differed
meaningfully from the second stage of the May 2015 IEP.
 N.E. V. SEATTLE SCHOOL DISTRICT 7

order and a preliminary injunction. The motion sought an
order requiring Defendant to place N.E. in a general
education class pending the outcome of the due process
challenge. The district court denied Plaintiffs’ motion on the
ground that they had not established a likelihood of success
on the merits. Plaintiffs timely appeal.

We review the denial of a preliminary injunction for
abuse of discretion. Prudential Real Estate Affiliates, Inc. v.
PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). But we
review legal questions, such as the meaning of a statute, de
novo. Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp.,
174 F.3d 1036, 1046 (9th Cir. 1999).

The pertinent portion of the IDEA provides:

[D]uring the pendency of any proceedings
conducted pursuant to this section, 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 . . . .

20 U.S.C. § 1415(j) (emphasis added). The IDEA does not
define “then-current educational placement.” The reading
most consistent with the ordinary meaning of the phrase
suggests that the “then-current educational placement” refers
to the educational setting in which the student is actually
enrolled at the time the parents request a due process hearing
to challenge a proposed change in the child’s educational
placement. But two conceptual difficulties complicate the
analysis. First, during the hiatus between school years, it is
artificial to refer to remaining in a then-current placement;
literally, there is none. Second, when an IEP contains two
8 N.E. V. SEATTLE SCHOOL DISTRICT

stages, determining the “then-current educational placement”
requires one to look either backward or forward.4 Here is a
graphic representation of the situation:

Our caselaw assists us in resolving the conundrum. We
have defined “educational placement” as “the general
educational program of the student.” N.D. v. Haw. Dep’t of
Educ., 600 F.3d 1104, 1116 (9th Cir. 2010). More
specifically, we have, in a series of cases, “interpreted
‘current educational placement’ to mean ‘the placement set
forth in the child’s last implemented IEP.’” K.D. ex rel. C.L.
v. Dep’t of Educ., 665 F.3d 1110, 1117–18 (9th Cir. 2011);
N.D., 600 F.3d at 1114; L.M. v. Capistrano Unified Sch. Dist.,
556 F.3d 900, 911 (9th Cir. 2009); Johnson ex rel. Johnson v.
Special Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir.
2002) (per curiam). Although the statute refers to
“educational placement,” not to “IEP,” the purpose of an IEP
is to embody the services and educational placement or
placements that are planned for the child. See Timothy O. v.

4
It is our view that the change of school districts, in this case, does
not affect the analysis.
 N.E. V. SEATTLE SCHOOL DISTRICT 9

Paso Robles Unified Sch. Dist. 822 F.3d 1105, 1111–12 (9th
Cir. 2016) (describing the creation and elements of an IEP).

That rule does not fully resolve the dispute here, though,
because the parties disagree about the status of N.E.’s “then-
current educational placement.” Plaintiffs contend that a
multi-stage IEP should be viewed as containing several
discrete “educational placements” and that any unrealized
stage within such an IEP should be seen as an unimplemented
“educational placement” that cannot serve as the stay-put
placement. Thus, Plaintiffs argue, because stage two of the
May 2015 IEP was never implemented, it cannot be
considered the “then-current educational placement.” That
conclusion, according to Plaintiffs, leaves only two options as
permissible stay-put placements: the individual class setting
described in stage one of the May 2015 IEP or the general
education setting that preceded the May 2015 IEP. Because
the individual class setting was considered short-term at the
time the parties created the May 2015 IEP, Plaintiffs claim
that the earlier general education setting is the most
appropriate stay-put placement. Defendant counters that the
May 2015 IEP, as a whole, was N.E.’s “then-current
educational placement” and that no legal authority precludes
a multi-stage IEP or an IEP that spans a summer break.

We agree with Defendant that a partially implemented,
multi-stage IEP, as a whole, is a student’s then-current
educational placement. A multi-stage IEP could be structured
as several distinct IEPs, but it need not be. For example,
some of our past cases assume that a single IEP may contain
several phases. See, e.g., T.B. ex rel. Brenneise v. San Diego
Unified Sch. Dist., 806 F.3d 451, 462–63 (9th Cir. 2015)
(describing a procedural defect in a multi-stage IEP, but not
criticizing the IEP for having several stages), cert. denied,
10 N.E. V. SEATTLE SCHOOL DISTRICT

136 S. Ct. 1679 (2016). Plaintiffs’ reading of the statute
would allow students and their families to challenge the
second half of any two-stage IEP when the transition occurs
during a school break and would permit repeated challenges
at every stage of a multi-stage IEP. We do not think that
Congress intended that result.

Additionally, by the time N.E.’s parents filed their due
process challenge, the second stage of the May 2015 IEP had
already been scheduled to start. As noted, the May 2015 IEP
provided that stage two—the self-contained
placement—would begin on September 1, 2015, while N.E’s
parents did not request a due process hearing until September
9, 2015. Under Plaintiffs’ view, parents who disagree with a
new IEP could wait until it is scheduled to take effect, pull
their child out of school, and then request a due process
hearing after the effective date of the new IEP. The new IEP
would not be “implemented” because the child is not
physically present in the new setting. By this logic, the
parents could then avail themselves of the stay-put
mechanism to enforce the terms of a preferred old IEP during
the course of the new school year while their due process
challenge is litigated. Once again, we do not think that
Congress intended such a result because it would undermine
the cooperative process envisioned by the IDEA.

We do not suggest that Plaintiffs’ request for a due
process hearing was untimely; the issue here does not pertain
to a statute of limitations. Rather, the question simply is how
to identify the status quo when a timely challenge occurs. For
example, had a one-stage IEP been completed on August 31,
for a single year, had N.E. begun school on September 1, and
had his parents brought their challenge a week later, the
challenge plainly would have been timely; but, just as plainly,
 N.E. V. SEATTLE SCHOOL DISTRICT 11

the “stay-put” placement would have been the current (as of
September 1) placement.

In short, the December 2014 IEP was superseded. The
May 2015 IEP encompassed both the individual class and the
self-contained class stages. Plaintiffs did not challenge the
May 2015 IEP despite having had months to do so before the
scheduled implementation of its second phase in September
2015.5 The May 2015 IEP had already been implemented
(and the scheduled start date for stage two had already
passed) by the time Plaintiffs requested a due process hearing
and, thus, was N.E.’s “then-current educational placement.”

The remaining question is whether the fact that the
hearing request occurred during the summer—before N.E.
physically enrolled in a self-contained class like the one
described in stage two of the May 2015 IEP—forces us to
view stage one as the stay-put placement. We think not, for
two reasons. First, and more importantly, the IEP was
implemented, and stage two was always the intended setting
in which N.E. would begin the 2015–16 school year, effective
September 1 (before N.E.’s parents requested a due process
hearing). Second, we commonly think of education as
forward-looking; we refer to a child who has completed
fourth grade and is about to enter fifth grade as a “rising fifth
grader.” The status quo at the time of the hearing request was

5
We cannot fault Plaintiffs for not having objected to stage one
before allowing N.E. to attend the individual class for the last few weeks
of the 2014–15 school year. But we view as critical the fact that Plaintiffs
never challenged the May 2015 IEP at any point before the new school
year was set to begin. Had Plaintiffs done so, they likely would have been
entitled to a stay-put order under the terms of the December 2014 IEP that
they could have presented to the Seattle School District upon transferring
there.
12 N.E. V. SEATTLE SCHOOL DISTRICT

the anticipated entry into the self-contained program. Stage
two of the May 2015 IEP, therefore, was N.E.’s stay-put
placement.

AFFIRMED.

BERZON, Circuit Judge, 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 their 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
 N.E. V. SEATTLE SCHOOL DISTRICT 13

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.

N.E. was enrolled as a student in the Bellevue School
District from kindergarten through third grade. He received
special education services throughout his time there. During
the 2014–15 school year, as in earlier years, N.E. received the
majority of his instruction “mainstreamed” – that is, in a
classroom with other children of his grade – with full time,
one-on-one support from a paraeducator. This instructional
setting, with associated services, was set forth most recently
in his December 2014 Individualized Education Program
(“IEP”).

N.E. had a difficult third grade year; the parties dispute
the reasons for the difficulties. In May 2015, Bellevue
School District conducted a reevaluation of N.E.’s special
educational needs. N.E.’s IEP team met on May 26, 2015 to
discuss the reevaluation and to adopt an IEP for the 2015–16
school year. At that meeting, the Bellevue School District
determined that N.E.’s educational needs had changed and
proposed that N.E.’s placement be altered, to a self-contained
classroom program for emotionally and behaviorally
disordered students (the Cascade Program), for the 2015–16

1
N.E. has scored in the 99th percentile in reading and 85th percentile
in mathematics on his last standardized test.
14 N.E. V. SEATTLE SCHOOL DISTRICT

school year. N.E.’s parents rejected the proposed placement
at the IEP team meeting, writing “disagree” on the draft IEP.2

Just before the May IEP meeting, the school emergency
expelled N.E., due to alleged escalating aggressive behaviors
at school.3 At the time of the meeting, N.E. was still expelled
and several weeks remained in the school year. After the full
IEP team dispersed, N.E.’s parents met with their attorney,
the principal, the Special Education Supervisor, and the
district’s attorney to discuss N.E.’s return to school following
the emergency expulsion.

N.E.’s parents did not want N.E. to return to Newport
Heights Elementary, as their trust in the school had been
strained by the emergency expulsion. They requested that the
district pay for a private school for the approximately three

2
That draft was blank on one page on which a proposed placement
was to be listed. The District had indicated its intention to fill in that page
with the proposed self-contained classroom program. The parents
therefore wrote “disagree” on the cover page of the draft.
3
An “emergency expulsion” in Washington public schools is a denial
of attendance for no more than ten days, imposed while a student poses a
danger or risk of substantial disruption. See Wash. Rev. Code
28A.600.015; Wash. Admin. Code 392-400-295. A student who is
emergency expelled does not have the right to remain in school while
challenging the disciplinary action. See Wash. Admin. Code 392-400-295.
This state law accords with the IDEA, which allows school authorities to
remove a child with disabilities who violates a code of student conduct
from the classroom, to the extent they would do so for children without
disabilities, for up to ten days. See 20 U.S.C. § 1415(k)(1)(B).

The school asserted that N.E. had gotten into a fight with his younger
brother while waiting to be picked up after school. N.E.’s parents maintain
that the Bellevue School District “fabricated” this incident because of
hostility to N.E.
 N.E. V. SEATTLE SCHOOL DISTRICT 15

weeks remaining in the school year. After the district
declined the request, N.E.’s parents and the district agreed
that N.E. would attend a different public elementary school
for those final days, where he would receive individualized
instruction from a certified teacher with support from a full-
time paraeducator. N.E. began attending that individual
classroom program two days later.

This short-term solution was not mentioned at all in the
text of the May 2015 IEP. Instead, the narrative stated that
“[N.E.] will be served in the Cascade program, which has
therapeutic social-emotional and behavior supports.” A grid
in the IEP, though, includes, under “Special Education and
Related Services,” the short-term solution the parents and the
principal had arrived at, as well as the year-long self-
contained classroom setting, to begin the following fall,
discussed at the IEP meeting – that is, the Cascade placement
to which the parents had already noted their objection.

Consistent with this sequence of events and with the Prior
Written Notice,4 both school personnel and N.E.’s parents
consistently described this individual class thereafter as a
“temporary” or “interim” program. The Special Education
Supervisor for the Bellevue School District described this

4
The Prior Written Notice sent to N.E.’s parents along with the final
IEP stated as N.E.’s “current placement” “his neighborhood school with
resource room support, 1:1 para[educator], and Behavior Intervention
Plan.” The “proposed or refused action” was “a change of placement to
the Cascade Program.” Under “Any other factors that are relevant to the
action,” the District explained that “[t]o assist with transition to the
[C]ascade program . . . the team discussed that for the remainder of this
school year, [N.E.] would receive 1:1 instruction provided by a
certificated teacher and supported by a paraeducator in an interim setting
at another elementary school.” (emphasis added).
16 N.E. V. SEATTLE SCHOOL DISTRICT

placement as a “temporary program to finish out the
remaining few weeks of the school year,” in an “interim
setting.” Likewise, the Seattle School District later described
the program as a “temporary measure,” taken because “the
decision to move him to a self-contained program came near
the end of the school year.” N.E.’s mother also repeatedly
described the individual class program as “interim.”

At the time N.E.’s parents received the Prior Written
Notice, they knew the family would be moving from Bellevue
to Seattle during the summer, and that it was the Seattle
School District that would be responsible for deciding N.E.’s
2015–16 placement. Moreover, an Independent Educational
Evaluation funded by the Bellevue School District was
pending at the time of the May 2015 IEP meeting. N.E.’s
parents expected the results of that evaluation to inform the
Seattle School District’s placement decision for the next
school year.

In August, N.E.’s family moved to Seattle and enrolled
N.E. in the Seattle School District. The Seattle School
District scheduled a Transfer Review IEP meeting with the
family for September 3, before the school year started.5 At
the IEP meeting, N.E.’s parents provided the District with a
letter from N.E.’s treating psychologist and the report from
the then-completed Independent Educational Evaluation, both
recommending against N.E.’s placement in a self-contained
classroom. Nonetheless, after considering the relevant
materials, the Seattle School District proposed placing N.E.
in a self-contained classroom like the one adopted by the

5
The Seattle School District’s “Transfer Review IEP” for N.E. lists
the dates of the proposed placement as September 9, 2015 to May 25,
2016, indicating that the school year started on September 9.
 N.E. V. SEATTLE SCHOOL DISTRICT 17

Bellevue School District in the May 2015 IEP. N.E.’s parents
rejected the Seattle School District’s proposal at the
September 3 meeting and filed their due process complaint
less than one week later, on September 9.

II

A.

Against this background, I turn to the question whether,
as the majority holds, the statute permitted the Seattle School
District immediately to place N.E., who had been
“mainstreamed” in Bellevue except for the three week end-of-
year agreed-upon program, in a self-contained special
education classroom. I am convinced that doing so while the
parents were challenging that restrictive placement violated
the IDEA’s “stay-put” provision.

I begin with the statute:

(i) Section 1415(j), titled “Maintenance of current
educational placement,” states:

[D]uring the pendency of any proceedings
conducted pursuant to this section, 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, or, if applying for initial admission
to a public school, shall, with the consent of
the parents, be placed in the public school
program until all such proceedings have been
completed.
18 N.E. V. SEATTLE SCHOOL DISTRICT

20 U.S.C. § 1415(j) (emphasis added). Notably, § 1415(j)
uses the term “then-current educational placement,” not
“Individualized Education Program,” as the benchmark.

Throughout the statute, the term “placement” refers to a
child’s on-the-ground educational experience, not the content
of a document. See, e.g., 20 U.S.C. §§ 1414(e); 1415(d)(2);
(k)(1); (k)(3). For example, Section 1415(k)(1)(B) authorizes
school personnel in exigent circumstances temporarily to
remove a child who violates the code of student conduct from
their “current placement” to an interim alternative setting. Id.
§ 1415(k)(1)(B). Section 1415(k)(1)(C) further provides that
a school can only in narrow circumstances order a “change of
placement” exceeding 10 days.6 Id. § 1415(k)(1)(C). Section
1415(k)(3) provides a mechanism for a parent to challenge
such a “decision regarding placement.” Id. § 1415(k)(3).
These provisions indicate parents may challenge individual
placements without regard to whether or how they are set
forth in an IEP, and so confirm that as used throughout the
statute, “placement” refers to the child’s actual educational
experience.

The phrase “then-current educational placement,” then,
refers to an educational setting actually experienced by the
student. “Because the term connotes preservation of the
status quo, it refers to the operative placement actually
functioning at the time . . . .” Thomas v. Cincinnati Bd. of

6
N.E.’s temporary placement in the individual classroom was not
made by the District pursuant to § 1415(k). Instead, the school district and
N.E.’s parents agreed to place N.E. in the individual classroom as a
temporary measure after his emergency expulsion, because N.E.’s parents
preferred he not return to Newport Heights Elementary School for the
remaining few weeks of the school year.
 N.E. V. SEATTLE SCHOOL DISTRICT 19

Educ., 918 F.2d 618, 625–26 (6th Cir. 1990); cf. N.W. ex rel.
J.W. v. Boone Cty. Bd. of Educ., 763 F.3d 611, 617 (6th Cir.
2014) (explaining that any such operative placement cannot
be one in which the parents unilaterally place their child);
34 C.F.R. § 300.116 (describing how educational placements
are determined). Consistently with this understanding,
Section 1415(j) is commonly referred to as the “stay-put”
provision.

(ii) The IDEA separately defines “Individualized
Education Program.” An “Individualized Education
Program” (“IEP”) is “a written statement for each child with
a disability that is developed, reviewed, and revised in
accordance with this section.” 20 U.S.C. § 1414(d)(1)(A). An
IEP sets out a child’s present educational performance and
measurable annual goals, describes how progress toward
those goals will be measured, and explains the special
education and related services the child will receive in the
future. Id.

The term “Individualized Education Program” (“IEP”)
appears in various sections of the statute. See, e.g., 20 U.S.C.
§ 1415(c)(1)(E); (f)(1)(B)(i); (k)(1)(D)(i); (k)(1)(E)(i). The
term helps describe the role of the team responsible for
establishing a child’s education program; the child’s
documented learning goals; and the documents administrators
must review when determining if a child’s behavior is a
manifestation of their disability. As these uses and the
definition indicate, an IEP is a “statement” – a document. It
is not the operational, on-the-ground educational setting
experienced by the child.

(iii) The distinct uses of the terms “placement” and
“Individualized Educational Program” throughout the IDEA
20 N.E. V. SEATTLE SCHOOL DISTRICT

confirm that the terms refer to distinct concepts. As the Sixth
Circuit observed in Cincinnati Bd. of Educ., 918 F.2d at 625,
“[h]ad Congress intended a prospective IEP to govern the
Act’s stayput provision, as opposed to an operational
placement, it could have employed the term ‘individualized
educational program’ which it had already defined.” By
using the term “placement,” not “Individualized Education
Program,” in the stay-put provision, the IDEA evidences the
intent not to tether the stay-put placement to a program
planned for the future.7 Instead, the “then-current educational
placement of the child” is the educational program to which
the child was accustomed at the time a proposed new, never-
implemented program is under challenge.

B.

My reading of the statutory language and structure
reflects the role of the “stay-put” provision in the statutory
scheme.

7
Our precedents are not to the contrary. Some refer to an
implemented IEP as the touchstone for the “stay-put” requirement. But
those cases state only that the then-current educational placement “is
typically the placement described in the child’s most recently implemented
IEP,” not that it always is. Johnson ex rel. Johnson v. Special Educ.
Hearing Office, 287 F.3d 1176, 1180 (9th Cir. 2002) (per curiam)
(emphasis added); see also L.M. v. Capistrano Unified Sch. Dist.,
556 F.3d 900, 911 (9th Cir. 2009). None of those cases held that the
child’s stay-put placement was an educational setting the child never
before experienced. See Johnson, 287 F.3d 1178–81; Capistrano,
556 F.3d 911–13; K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d 1110,
1117–21 (9th Cir. 2011); N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104,
1116 (9th Cir. 2010). Use of the shorthand term “last implemented IEP”
in that line of cases thus did not encompass situations in which a future
educational placement projected in an IEP never occurred.
 N.E. V. SEATTLE SCHOOL DISTRICT 21

The IDEA was first enacted in 1975 in response to
evidence that disabled children were not receiving adequate
educational services and that many children were “excluded
entirely from the public school system and [would] not go
through the educational process with their peers.” Pub. L.
No. 94-142, § 3(b)(4), 89 Stat. 773, (1975) (codified at
20 U.S.C. § 1401 note (1976) (Congressional Findings).8 The
IDEA prevents the unnecessary exclusion of children with
special educational needs from the classrooms attended by
nondisabled children (“general education classrooms”), by
requiring that school districts provide to special needs
children the least restrictive education setting practical.
20 U.S.C. § 1412(a)(1), (5); Honig v. Doe, 484 U.S. 305,
309–11, 324, 325 n.8, 327 (1988), partially superseded by
statute on other grounds, Individuals with Disabilities
Education Act Amendments of 1997, Pub. L. No. 105-17,
§ 615(k), 111 Stat. 37 (1997). Toward that end, the IDEA
provides both a substantive guarantee that all children with
disabilities will receive a free appropriate public education,
20 U.S.C. § 1412(a)(1), and procedural safeguards to ensure
that result. Among those safeguards are provisions that
require meaningful parent participation in all aspects of the
child’s education, including the right to challenge in impartial
proceedings official school action. 20 U.S.C. § 1415(f)(1)(A);
see Honig, 484 U.S. at 312.

The statute’s stay-put provision complements both the
substantive concern with avoiding restrictive educational
environments if possible and the assurance that parents may

8
The Act was originally entitled the Education for All Handicapped
Children Act of 1975. It was amended in 1990 and renamed the
“Individuals with Disabilities Education Act.” Pub. L. No. 101-476,
104 Stat. 1103 (1990). I refer to both versions of the statute as “IDEA.”
22 N.E. V. SEATTLE SCHOOL DISTRICT

meaningfully participate in deciding on their children’s
educational placement. Enacted “to prevent school officials
from removing a child from the regular public school
classroom over the parents’ objection pending completion of
the review proceedings,” Sch. Comm. of Town of Burlington,
Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 373 (1985);
see also K.D., 665 F.3d at 1120, the stay-put provision
“meant to strip schools of the unilateral authority they had
traditionally employed to exclude disabled students,
particularly emotionally disturbed students . . . .” Honig,
484 U.S. at 323. By doing so, the stay-put requirement
eliminated the “heightened risk of irreparable harm inherent
in the premature removal of a disabled child to a potentially
inappropriate educational setting.” Joshua A. v. Rocklin
Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009).
Tying the stay-put provision to an actual educational setting
experienced by the child – not a planned future placement
included in an IEP statement – avoids that result.

C.

Here, at the time N.E.’s parents brought their due process
challenge on September 9, 2015, the summer break was just
concluding, the 2015–16 school year was about to begin
(apparently that day), and the new school district had just
announced N.E.’s assignment for the coming year. In this
circumstance, the IDEA’s promise that parents can preserve
the status quo while challenging school district actions most
sensibly requires us to look for stay-put purposes to the
general education classroom (with accommodations).

The two other candidates for the “stay-put” benchmark
are the individual class, the stop-gap educational setting
agreed to by his parents and understood by all concerned as
 N.E. V. SEATTLE SCHOOL DISTRICT 23

temporary or interim, and the Cascade Program, which N.E.
had never attended.

As to the first, the school district and N.E.’s parents
agreed that N.E. would be in the individual class for
approximately three weeks, to finish the school year. As both
parties now recognize, “[t]he policy behind [the stay-put
provision] supports an interpretation of ‘current educational
placement’ that excludes temporary placements . . . .”
Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 10 (1st Cir.
1999). Such placements do not reflect any considered
judgment, at any point, that the temporary placement is
suitable for the long-term educational development of the
child. In situations like this one, where the school district and
the child’s family do not agree to extend a temporary
placement, the stay-put provision requires placing the student
“in the last placement that the parents and the educational
authority agreed to be appropriate.” Id.

As to the Cascade Program, it was certainly not the “then-
current educational placement” at the time N.E.’s parents
challenged the Seattle District’s proposed placement. N.E.
had never been taught in an isolated special education
classroom. To place him in one would fundamentally alter
his educational experience, without his parents’ consent and
before the proceedings designed to prevent the “heightened
risk of irreparable harm inherent in the premature removal of
a disabled child to a potentially inappropriate educational
setting,” Joshua A., 559 F.3d at 1040, could go forward.

The third alternative, placement in the general education
classroom with full-time paraeducator support, is the setting
in which N.E. received instruction for all but the last few
weeks of the prior school year, as well as in prior years. The
24 N.E. V. SEATTLE SCHOOL DISTRICT

May 2015 IEP identifies this setting and associated services
as N.E.’s “current placement at his neighborhood school.”
Placing N.E. in that general education setting while his
parents bring their due process challenge would fulfill the
statutory “stay-put” purpose of ensuring that schools cannot
unilaterally exclude children from the general educational
setting. See Honig, 484 U.S. at 323. And it would provide
stability for N.E. in his educational experience, to the degree
possible given the change in school districts.

The alternative embraced by the majority – allowing
Seattle to move N.E. for the first time to a self-contained
classroom for emotionally and behaviorally disordered
children – would, in contrast, fundamentally disrupt N.E.’s
education. Yet, the challenge to the IEP, if successful, could
result in a second disruption, returning N.E. to the general
educational setting his parents seek. In the meantime, N.E.
would have been educated for a long period in an
inappropriate setting, in isolation from his peers. Section
1415(j) is designed to preclude precisely such disruption and
such potentially long term harm to students with disabilities.

III.

The majority disagrees with my application of the IDEA
“stay-put” requirement to this case. It does not contest that
“then-current educational placement” ordinarily refers to the
actual educational setting in which a student is enrolled. But
it insists that for several reasons, the usual understanding
does not apply here, and that, instead, the “stay-put” baseline
is the self-contained classroom setting which N.E. had never
actually experienced.
 N.E. V. SEATTLE SCHOOL DISTRICT 25

First, the majority maintains that the May 2015 IEP
contained two stages, one of which was implemented, and
that the “then-current educational placement” therefore
became the never-implemented, longterm part of the IEP.
Second, the majority sees significance in the timing of N.E.’s
parents due process challenge – during the summer break.
Maj. Op., pp. 7–8. Third, the majority indicates that N.E.’s
parents brought the stay-put problem on themselves by filing
their challenge to the Cascade Program when they did.
Finally, the majority suggests that N.E.’s alleged disruptive
behavior in the spring of 2015 justified the transfer. None of
these circumstances supports the majority’s conclusion that
“a partially implemented, multi-stage IEP, as a whole, is a
student’s then-current educational placement,” and that the
self-contained classroom is therefore N.E.’s stay-put
placement. Maj. Op., p. 9. I take in turn each of the specific
circumstances of this case on which the majority relies.

A.

The majority characterizes the May 2015 IEP as a
partially implemented, multi-stage IEP. In fact, the May
2015 IEP proposed only one continuing placement, the self-
contained classroom program. On both the Prior Written
Notice and in the IEP, the district stated that it was proposing
a new placement for N.E. in the Cascade Program, a self-
contained classroom. The Prior Written Notice specifically
referred to the individual class as an “interim” setting and did
not propose the individual class as a new placement. Instead,
it noted that “to assist with [N.E.’s] transition to the cascade
program at the beginning of the year,” for the remainder of
the current school year N.E. “would receive 1:1 instruction
provided by a certificated teacher and supported by a
paraeducator in an interim setting at another elementary
26 N.E. V. SEATTLE SCHOOL DISTRICT

school.” The IEP itself included the three-week interim
program in the matrix of services, but it did not elsewhere
describe the program. All concerned parties understood the
individual classroom program to be a stop-gap measure that
was distinct from the placement proposal made at the May
IEP meeting. See pp. 15–16, supra. The manner in which
these documents present, and the participants in the IEP
decision understood, the two programs indicates that the
proposed placement was the self-contained program; the one-
on-one setting was a temporary, agreed-upon measure to
close out the last weeks of the school year.

In the end, though, on my reading of the statute, the
dispute over whether the IEP is a two-stage educational
program or a one-stage, full-year program with a temporary,
stop-gap placement ultimately does not matter. The “stay-
put” provision, as I have explained, focuses not on what is
contained in the IEP document but on the child’s actual
educational experience.

Here, N.E. had never experienced the self-contained
classroom program the 2015 IEP proposed. A child cannot
“stay-put” in a program in which he never took part; the
“then-current educational placement” cannot be an
educational setting the child has never experienced. From the
child’s point of view, moving him to an entirely new kind of
educational experience, one that exists only on paper, is
precisely the sort of fundamental disruption the “stay-put”
provision was designed to prevent.

Moreover, permitting the school district to implement an
entirely new educational program while the parents are
properly challenging it allows the unilateral school district
decisionmaking the IDEA does not permit. “The preservation
 N.E. V. SEATTLE SCHOOL DISTRICT 27

of the status quo [is meant to] ensure[] that the student
remains in the last placement that the parents and the
educational authority agreed to be appropriate.” Verhoeven,
207 F.3d at 10.

B.

Like the majority’s concern with the nature of the IEP, the
circumstance that the summer break intervened does not
require departure from the stay-put provision’s mandate to
preserve the status quo. Even if “we commonly think of
education as forward-looking,” Maj. Op., p. 11, the focus of
the stay-put requirement is static – to preserve an existing
educational placement until any challenge to a newly
proposed one is resolved. An entirely new, future placement,
never experienced by the child, is not what one would call the
“current” one in ordinary language; “current” suggests
continuity, not disruption.9 As between (1) the educational
placement in place at the time the IEP was devised and for the
entirety of N.E.’s prior education, and (2) an educational
program N.E. had never experienced, the former, most recent
one (except for the three-week stop gap) has to be the “then-
current” one for purposes of a provision designed to preserve
the status quo and prevent disruption. Further, if school
districts could unilaterally and fundamentally change a
child’s educational placement over the summer break because
there is no “then-current” educational placement during that
period, the IDEA’s commitment to parental involvement in
devising educational programs for disabled children would be
severely undermined.

9
The majority notes that we might refer to a child who is about to
enter fifth grade as a “rising fifth grader.” But we do not refer to that child
as a “fifth grader,” precisely because they have not yet started fifth grade.
28 N.E. V. SEATTLE SCHOOL DISTRICT

C.

The majority also faults N.E.’s parents for filing their due
process challenge when they did, suggesting the result might
be different had the challenge been lodged earlier. But the
parents filed their challenge when they did for a practical
reason: N.E.’s parents did not know the Seattle School
District would propose the self-contained classroom
placement proposed by the Bellevue School District until the
IEP meeting on September 3.

Having moved from one district to another over the
summer, N.E.’s parents knew that the Seattle School District
would decide N.E.’s placement for the 2015–16 school year.
The statute requires that “[a]t the beginning of each school
year, each local educational agency. . . shall have in effect,
for each child with a disability in the agency’s jurisdiction,
an individualized education program.” 20 U.S.C.
§ 1414(d)(2)(A).10 Given the Independent Educational

10
The statute also contains a section that deals with student transfers
between school districts that take place within an academic year. That
section provides: “In the case of a child with a disability who transfers
school districts within the same academic year, who enrolls in a new
school, and who had an IEP that was in effect in the same State, the local
educational agency shall provide such child with a free appropriate public
education, including services comparable to those described in the
previously held IEP, in consultation with the parents until such time as the
local educational agency adopts the previously held IEP or develops,
adopts, and implements a new IEP that is consistent with Federal and State
Law.” 20 U.S.C. § 1414(d)(2)(C). Since N.E. did not transfer districts
within the same academic year, this section does not govern his case. The
Seattle School District nonetheless described N.E.’s new proposed IEP as
a “Transfer Review” IEP, so it may have been under the impression that
this provision applied. Whether under § 1414(d)(2)(A) or § 1414(d)(2)(C),
it was clear to both school officials and N.E.’s parents that the Seattle
 N.E. V. SEATTLE SCHOOL DISTRICT 29

Evaluation report and the psychologist’s letter recommending
against the self-contained classroom placement, N.E.’s
parents had good reason to anticipate that the Seattle School
District might not propose the self-contained classroom
placement in adopting the new IEP. A due process challenge
against the Seattle School District before September 1 would
have been premature.

The majority’s focus on the September 1 date is
misplaced for another reason. The Bellevue School District
listed September 1 on the May IEP as the start date for the
self-contained classroom placement, but the date did not
correspond to the actual start of the school year in Seattle. As
noted, school had not yet begun in Seattle on September 1.
Because the stay-put provision requires attention to a child’s
actual educational experience, a projected start date in a
document should not obscure the on-the-ground reality.

The majority’s critique of the timing of N.E.’s parents’
due process challenge leads to untoward practical
consequences if accepted. The majority faults N.E.’s parents
for not challenging what they call “stage one” of the IEP, a
challenge which would have been meaningful only had it
been brought before that stage finished. But N.E.’s parents
agreed with the stage one placement, as an available interim
measure. There is nothing in the statute requiring parents to
object to a short, interim, emergency placement to which they
agree so that they can challenge a later, long-term, entirely
different, placement they oppose, while still benefitting from
IDEA’s stay-put provision.

School District had an obligation to adopt an IEP for N.E. for the
beginning of that school year.
30 N.E. V. SEATTLE SCHOOL DISTRICT

Moreover, under the majority’s reasoning, for the general
education setting to become the “stay-put” placement, N.E.’s
parents would have had to file their due process challenge
before stage one began. But it would have been impossible
for N.E.’s parents to do so here, as they did not receive the
statutorily-mandated prior written notice until a week or ten
days after N.E. began attending the interim individual class.11
That notice was the first time in which the interim, agreed-
upon setting and the self-contained classroom placement were
bundled into a single IEP. Under the majority’s approach,
N.E.’s parents were effectively locked into both stages of the
IEP by the time they saw the IEP document.

Even assuming that the parents received sufficient notice
in the May meetings that the two programs would thereafter
be inextricably linked – and I do not think they did – it would
take some time for the parents to bring a due process
challenge. N.E. began attending the interim program only
two days after the IEP meeting. To bring a due process
challenge, parents must: find and contact a competent lawyer;
set up an appointment; discuss their options with the lawyer
and probably between themselves; draft and file a complaint;
and then assert their child’s stay-put right.

Indeed, even in a situation in which parents do receive
timely prior written notice of an IEP containing a short-term
interim placement and a new placement, it is quite possible
that they would not be able to file a complaint to challenge

11
The majority is correct that N.E.’s parents waived their argument
that the entire May 2015 IEP is invalid because they did not receive timely
prior written notice. That does not, however, change the fact that, given
the tardiness of the notice, N.E.’s parents could not have filed a challenge
and brought a stay-put motion before the stage one placement began.
 N.E. V. SEATTLE SCHOOL DISTRICT 31

the IEP before the first stage is implemented. The statute
requires roughly ten days’ notice prior to implementation of
a proposed change. See Letter to Winston, 213 IDELR 102,
p. 3 (Office of Special Educ. Programs 1987). Filing a due
process complaint will likely often take more than ten days.

Under the majority’s rule, any time an emergency
placement is proposed for rapid implementation and is
attached to a longer placement in an IEP, the parents’ only
feasible option is to challenge both the interim and new
placement before the interim placement begins. Otherwise,
they will be stuck with implementation of the unacceptable
stage of the IEP while the challenge proceeds. And doing so
is likely to be difficult, given the time necessary to mount a
challenge.

D.

Finally, moving N.E. to a restrictive environment during
the pendency of the due process proceedings was not
necessary to address any concern about N.E.’s allegedly
aggressive and violent behavior. The IDEA provides
procedures for addressing behavioral problems and safety
concerns short of such unilateral action.

First, the Act provides that an IEP team “consider the use
of positive behavioral interventions and supports” when a
child’s behavior “impedes the child’s learning or that of
others.” 20 U.S.C. § 1414(d)(3)(B)(I). Next, when a child
with a disability violates a code of student conduct, the Act
authorizes school personnel to remove that child to an
alternative educational setting, or to suspend the student, for
up to 10 days, to the extent such discipline would be applied
32 N.E. V. SEATTLE SCHOOL DISTRICT

to children without disabilities. 20 U.S.C. § 1415(k)(1)(B).12
If, after school personnel remove a child from their current
placement pursuant to that authority, the IEP team determines
that the problem behavior is a manifestation of the child’s
disability, the Act directs the IEP team to “conduct a
functional behavioral assessment, and implement a behavioral
intervention plan,” or to review and modify an existing
behavioral intervention plan to address the child’s problem
behavior. Id. § 1415(k)(1)(F). Finally, school authorities can
remove a child with a disability to an alternative setting for
up to 45 days when that child has a weapon, possesses or uses
illegal drugs, or injures another person at school. Id.
§ 1415(k)(1)(G). If N.E.’s problem behavior recurred while
he was placed in a general education classroom, these
provisions would provide the Seattle School District with
lawful, effective means of addressing those problems and
preserving classroom safety.

****

In short, although the circumstances of this case do
introduce some complexity into applying the IDEA’s stay-put
requirement, these circumstances do not change my
conclusion that N.E.’s stay-put placement is the general
educational setting with individual paraeducator support he
had experienced for almost all his student life.

IV.

The majority’s approach simply cannot be reconciled with
the text of the statute or its purposes. It confines N.E. to the

12
N.E.’s “emergency expulsion” before his temporary placement in
the individual class conformed with this statutory authorization.
 N.E. V. SEATTLE SCHOOL DISTRICT 33

most restrictive placement contained in any of his IEPs,
removes him almost entirely from the general education
setting, and places him in a setting in which he was never
previously enrolled. The majority’s approach has the
practical potential broadly to preclude relief to parents and
their children with special educational needs. I respectfully
dissent.