FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
N. D.; A. U.; C. K.; C. J.; M. D.;
B. A.; G. S.; T. F.; J. K., disabled
minors, through their parents No. 09-17543
acting as guardians ad litem, D.C. No.
Plaintiffs-Appellants,
1:09-cv-00505-
v. AWT-BMK
STATE OF HAWAII DEPARTMENT OF OPINION
EDUCATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
A.Wallace Tashima, Senior Circuit Judge, Presiding
Argued and Submitted
February 10, 2010—Honolulu, Hawaii
Filed April 5, 2010
Before: Jerome Farris, Dorothy W. Nelson and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Farris
5167
N. D. v. STATE OF HAWAII 5171
COUNSEL
Carl M. Varady, Honolulu Hawaii; Stanley E. Levin and
Susan K. Dorsey, Levin Education Access Project, Honolulu,
Hawaii, for the plaintiffs-appellants.
Mark J. Bennett, Attorney General of Hawaii, and Dierdre
Marie-Iha and Holly Shikada, Department of the Attorney
General, Honolulu, Hawaii, for the defendant-appellee.
OPINION
FARRIS, Senior Circuit Judge:
N.D., et al., disabled minors enrolled in the State of
Hawaii’s public school system, alleging violations of the Indi-
viduals with Disabilities Education Act, 20 U.S.C. §§ 1400-
1487 (2006), appeal an order denying their motion for a pre-
liminary injunction seeking to prevent Hawaii from shutting
down public schools on seventeen Fridays and concurrently
furloughing the teachers. We agree with the district court that
the stay-put provision of the IDEA was not intended to cover
system-wide changes in public schools that affect disabled
and non-disabled children alike, and that such system-wide
changes are not changes in educational placement. The dis-
trict court had jurisdiction under 28 U.S.C. §§ 1331, 1343
(2006). We have jurisdiction under 28 U.S.C. § 1292(a)(1)
(2006) to hear this interlocutory appeal. We affirm.
I.
The State of Hawaii is currently in the midst of a major fis-
cal crisis. To help alleviate the fiscal crisis, Hawaii decided to
shut down the public schools for seventeen Fridays in the
2009-2010 school year. School children, disabled and non-
disabled alike, would not attend school on those Fridays. The
5172 N. D. v. STATE OF HAWAII
elimination of those seventeen Fridays from the school calen-
der constitutes a reduction in instructional days of approxi-
mately ten percent. Hawaii reached a negotiated agreement,
covering the 2009-2010 and 2010-2011 school years, with the
Hawaii State Teachers Association, the state teachers union,
to implement furloughs of all public school teachers on the
Fridays when the schools were closed. The first so-called
“furlough Friday” was on October 23, 2009.
In response to the impending furloughs, N.D. requested a
due process hearing on October 19, 2009 from the State of
Hawaii Department of Education regarding the potential
change in his individual educational program.1 Along with
this request, N.D. invoked the stay-put provisions of the
IDEA. See 20 U.S.C. § 1415(j) (2006). Hawaii did not adjust
the furloughs in response to the invocation of the stay-put pro-
vision and moved forward with the furloughs.
N.D. filed suit in district court on October 20, 2009, nam-
ing only the State of Hawaii Department of Education as a
defendant. The plaintiffs included nine disabled children
enrolled in five public schools. N.D. alleges that the furlough
of the teachers and concurrent shutdown of the public schools
violated his rights under the IDEA. Specifically, N.D. alleges
that the furloughs constituted a change in his educational
placement, and as part of his request for a due process hear-
ing, he was entitled to remain in his then-current educational
1
An individual educational program is a written statement that is devel-
oped for each disabled child and includes (1) information on the child’s
present level of academic achievement and functional performance; (2) a
statement of annual goals and how they will be measured; (3) information
on what special education services will be provided to the child; (4) an
explanation of the extent to which the child will not be in class with non-
disabled children; (5) statement of any accommodations necessary to mea-
sure academic achievement; and (6) the date services are to begin for the
child and the approximate frequency, location, and duration of those ser-
vices. 20 U.S.C. § 1414(d) (2006); L.M. v. Capistrano Unified Sch. Dist.,
556 F.3d 900, 905 n.1 (9th Cir. 2009), cert. denied 130 S. Ct. 90 (2009).
N. D. v. STATE OF HAWAII 5173
placement. N.D. moved for a temporary injunction of the fur-
loughs. The temporary injunction was denied by the district
court on October 22, 2009.2
On November 9, 2009, the district court held a hearing on
whether a preliminary injunction should be issued. The
injunctive relief N.D. has sought over the course of the litiga-
tion is an end to the school furloughs as they affect the plain-
tiffs. Prior to the hearing, N.D. submitted evidence as to the
harm suffered by the disabled children as a result of the first
several furlough days. Hawaii submitted evidence that it was
undertaking efforts to provide the disabled children with alter-
nate services consistent with their IEPs.
This timely appeal followed the denial of N.D.’s motion for
a preliminary injunction.
II.
The State of Hawaii alleges that N.D. failed to join a neces-
sary party, the HSTA. Hawaii alleges that the HSTA is a nec-
essary party to the litigation because Hawaii negotiated a
contract with the HSTA for the furlough days and a prelimi-
nary injunction would void that contract, affecting HSTA’s
contract rights. The district court failed to rule on this issue,
therefore we review it de novo. UOP v. United States, 99 F.3d
344, 347 (9th Cir. 1996).
The HSTA is necessary if complete relief cannot be granted
without it. FED. R. CIV. P. 19(a)(1)(A); Altmann v. Republic
of Austria, 317 F.3d 954, 971 (9th Cir. 2002), aff’d 541 U.S.
677 (2004). In the alternative, we consider whether the HSTA
2
District Judge Ezra was the presiding judge for the temporary injunc-
tion motion. On November 3, 2009, Senior Circuit Judge Tashima was
designated the United States District Judge temporarily for the District of
Hawaii for this case. Judge Tashima presided at the preliminary injunction
hearing.
5174 N. D. v. STATE OF HAWAII
claims a legally protected interest in the subject of the action
such that a decision without it will (1) impair or impede its
ability to protect that interest; or (2) expose N.D. and the State
of Hawaii to the risk of multiple or inconsistent obligations by
reason of that interest. See FED. R. CIV. P. 19(a)(1)(B); Dawa-
vendewa v. Salt River Project Agr. Imp. and Power Dist., 276
F.3d 1150, 1155 (9th Cir. 2002). If the HSTA satisfies either
of these alternative tests, it is necessary to the instant action
and must be joined. Dawavendewa, 276 F.3d at 1155.
[1] As to the first test, we have held that a “party to a con-
tract is necessary . . . to litigation seeking to decimate that
contract.” Id. at 1157. Hawaii argues that the negotiated
agreement would be voided by the injunctive relief sought by
N.D. because Hawaii would have to order the teachers back
to school, which Hawaii alleges violates the contract. This is
premised on paragraph (3)(c) of the contract which provides
that the furloughs that may be implemented are subject to the
condition that “[a]ll 10 month employees shall be placed on
furloughs for a total of 34 days over the 2009-2011 fiscal
biennium.” (emphasis added). Once the furloughs have been
implemented, then employees are mandatorily furloughed for
34 days over two years. There appears to be no option for
recalling the teachers. Forcing the State to violate the contract
would render the entire contract void because the furlough
provision is the whole purpose of the contract. See Beneficial
Hawaii, Inc. v. Kida, 30 P.3d 895, 917 (Haw. 2001).3
[2] In this case, complete relief can be granted since an
injunction would not render the contract illegal. An injunction
would only require the schools to be open and the IEPs fol-
lowed. The injunction does not order the State to order the
teachers back to work nor does it declare the furloughs illegal.
The furloughs are a byproduct of shutting the schools down.
3
We look at state law to construe contracts. See Island Ins. Co., Ltd. v.
Hawaiian Foliage & Landscape, Inc., 288 F.3d 1161, 1163 (9th Cir.
2002).
N. D. v. STATE OF HAWAII 5175
N.D. does not have to prove that the contract is illegal for the
injunction to issue. The question of how Hawaii decides to
staff the schools when they are open and implement the IEPs
is not before us. The State has not shown that an injunction
would necessarily force it to violate the contract.
[3] Turning to the alternate test, the HSTA could be a nec-
essary party if it claims a legally protected interest. The
HSTA does not have a legally protected interest here. The
negotiated agreement provides simply that Hawaii “may [ ]
implement furloughs.” (emphasis added). The furloughs are at
the State’s option, not the teachers’. If Hawaii had decided not
to implement the furloughs then the teachers would have had
to show up for work as usual. The HSTA interest was an iron-
clad guarantee of no layoffs. This guarantee gave the State the
option to furlough teachers. That interest is not affected
regardless of whether the furloughs were implemented. The
HSTA is not a necessary party and does not have to be joined.
III.
Hawaii also argues that N.D. failed to exhaust all of his
administrative remedies before coming to federal court.
Whether exhaustion is required under the IDEA is a question
of law that is reviewed de novo. Doe v. Arizona Dept. of
Educ., 111 F.3d 678, 681 (9th Cir. 1997).
[4] It is undisputed that N.D. has not exhausted his admin-
istrative remedies. He has not completed his due process hear-
ing. Judicial review under the IDEA in a particular case is
normally available only if the plaintiff exhausts her adminis-
trative remedies. 20 U.S.C. § 1415(l) (2006); Kutasi v. Las
Virgenes Unified Sch. Dist., 494 F.3d 1162, 1167 (9th Cir.
2007). As we have recognized previously, the exhaustion
requirement:
[R]ecognizes the traditionally strong state and local
interest in education, allows for the exercise of dis-
5176 N. D. v. STATE OF HAWAII
cretion and educational expertise by state agencies,
affords full exploration of technical educational
issues, furthers development of a factual record and
promotes judicial efficiency by giving state and local
agencies the first opportunity to correct shortcom-
ings.
Kutasi, 494 F.3d at 1167. However, exhaustion is not required
if “it would be futile or offer inadequate relief, or if the
agency has adopted a policy or pursued a practice of general
applicability that is contrary to the law.” Doe, 111 F.3d at 681
(quotation marks and citations omitted); see Kutasi, 494 F.3d
at 1167-68.
[5] We have not yet addressed the issue of whether
exhaustion is required in the context of a suit alleging viola-
tions of § 1415(j). All of our previous cases regarding exhaus-
tion under the IDEA have dealt with requests for damages and
not with the stay-put provision. See Kutasi, 494 F.3d at 1169;
Blanchard v. Morton Sch. Dist., 420 F.3d 918, 919 (9th Cir.
2005); Robb v. Bethel Sch. Dist. #403, 308 F.3d 1047, 1048
(9th Cir. 2002); Witte v. Clarke County Sch. Dist., 197 F.3d
1271, 1272 (9th Cir. 1999). However, the Second Circuit
addressed this precise point in Murphy v. Arlington Cent. Sch.
Dist. Bd. of Educ., 297 F.3d 195 (2d Cir. 2002). In Murphy,
the plaintiff sued for a violation of § 1415(j) and requested
funding to keep the disabled child in his current educational
placement. Id. at 198-99. There, the court ruled that exhaus-
tion of administrative remedies was not required because of
the time-sensitive nature of the right § 1415(j) was designed
to protect — i.e., the right to remain in the current educational
placement. Id. at 199-200.
[6] We find the Second Circuit’s reasoning persuasive and
adopt it here. Hawaii argues that the administrative process
can provide adequate relief and points to all the steps it has
taken amidst the furloughs to reschedule IEP services. This
argument is a non-sequitur. Hawaii’s argument presupposes
N. D. v. STATE OF HAWAII 5177
that the steps it has taken will be effective and provide a com-
parable setting to N.D.’s current educational placement. How-
ever, the problem complained of in the suit is that the
administrative agency refused to apply the stay-put provision
pursuant to 20 U.S.C. § 1415(j). The claimed right is the right
to maintain the disabled student’s current educational place-
ment while the judicial proceeding is ongoing to determine if
the new placement is appropriate. The relief requested in the
preliminary injunction is essentially the same relief provided
by the stay-put provision. Exhausting the administrative pro-
cess would be inadequate because the stay-put provision (and
therefore the preliminary injunction) is designed precisely to
prevent harm while the proceeding is ongoing. Murphy, 297
F.3d at 199-200. The stay-put provision recognizes the need
for the child to keep her current educational placement as the
administrative process tries to sort out alternatives. If the child
is moved from the current placement during the process, then
the deprivation of the right has occurred. The completion of
the administrative process cannot remedy the harm. Id; see
also Cole v. Metro. Gov’t of Nashville, 954 F. Supp. 1214,
1221 (M.D. Tenn. 1997). Access to the preliminary injunction
is essential to vindicate this particular IDEA right. Murphy,
297 F.3d at 200.
IV.
The substantive issue is whether the district court erred in
denying the preliminary injunction.4 We review the denial of
the preliminary injunction for an abuse of discretion. Earth
Island Institute v. United States Forest Service, 351 F.3d
1291, 1298 (9th Cir. 2003). Under the newly articulated abuse
of discretion standard, we “determine de novo whether the
trial court identified the correct legal rule to apply to the relief
requested.” United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc). A district court that applied the
incorrect legal standard necessarily abused its discretion. Id.
4
Judge Tashima ruled from the bench and issued only an oral opinion.
5178 N. D. v. STATE OF HAWAII
at 1262. If the correct legal standard is applied then we
reverse only when the district court reaches a result that is
illogical, implausible, or without support in the inferences that
may be drawn from the record. Id.
As set forth by the Supreme Court:
plaintiffs seeking a preliminary injunction must
establish that (1) they are likely to succeed on the
merits; (2) they are likely to suffer irreparable harm
in the absence of preliminary relief; (3) the balance
of equities tips in their favor; and (4) a preliminary
injunction is in the public interest.
Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.
2009) (citing Winter v. Natural Res. Def. Council, Inc., 129
S. Ct. 365, 374 (2008)).
N.D. alleges several errors in the district court’s ruling.
N.D. argues, first, that the district court applied the wrong
standard and should have applied the stay-put provision’s
automatic injunction standard rather than the preliminary
injunction standard. N.D. further argues that even if the dis-
trict court did apply the correct standard, it abused its discre-
tion in evaluating the factors. Finally, N.D. argues that the
district court erred in finding that he was not likely to succeed
on the merits because the furloughs did not create a change
in his educational placement and therefore the stay-put provi-
sions did not apply.
A.
[7] First, N.D. argues that the stay-put provision’s auto-
matic injunction should apply instead of the balancing test
required for preliminary injunctions. We find this argument
unpersuasive. The preliminary injunction would order the
DOE to recognize the invocation of the stay-put provisions.
The alleged violation is that Hawaii is not providing the pro-
N. D. v. STATE OF HAWAII 5179
tection of the stay-put provision. The claim underlying the
preliminary injunction is that the stay-put provision applies.
In essence, the preliminary injunction is an injunction for an
injunction. While the result would be the same under both
standards if relief is granted — i.e., the schools remain open
and the individual students’ IEPs are implemented — the
legal test is different for each standard.
[8] N.D. relies on Joshua A v. Rocklin Unified Sch. Dist.,
559 F.3d 1036 (9th Cir. 2009) to make the argument that the
automatic injunction should apply. Joshua A. does not apply
in this instance. In Joshua A., the party presented its motion
for stay-put directly to the Court of Appeals. Id. at 1037. The
Court was ruling on the substance of the motion itself. Here,
the motion is for a preliminary injunction that affects a stay-
put invocation, not the stay-put invocation itself. Cf. Johnson
ex rel. Johnson v. Special Educ. Hearing Office, State of Cali-
fornia, 287 F.3d 1176, 1180 (9th Cir. 2002) (per curiam)
(finding the automatic provision did not apply when the plain-
tiff sought an injunction for a claim regarding the validity of
an existing stay-put order). The district court did not err in
considering all factors of the preliminary injunction test.5
B.
We now turn to the four factors of the preliminary injunc-
tion test and evaluate them one-by-one.6 The district court
5
Even if we were to hold that the stay-put provision automatic injunc-
tion standard is the relevant test, we would still have to determine the ini-
tial question of whether or not the stay-put provision even applied. This
determination is the exact same determination as to whether the plaintiff
is likely to succeed on the merits in this case, addressed infra IV.C.
6
Hawaii alleges that the injunction is mandatory and we should apply
the corresponding heightened standard for granting a mandatory injunc-
tion. A prohibitory injunction maintains the status quo whereas a manda-
tory injunction “goes well beyond simply maintaining the status quo
pendente lite [and] is particularly disfavored.” Stanley v. Univ. of S. Cali-
fornia, 13 F.3d 1313, 1320 (9th Cir. 1994) (citations omitted). The status
5180 N. D. v. STATE OF HAWAII
found that there was a high likelihood that plaintiffs would
suffer irreparable harm. This finding was based on declara-
tions submitted by N.D. detailing the injuries their children
had suffered. N.D. demonstrated regression in his behavior,
increased difficulty with activities, and outbursts of frustration
and violence. The other children showed regression in behav-
ior leading to increased aggression. To counter the allegations
of harm, Hawaii submitted numerous declarations outlining
the steps they were taking to minimize the disruption that the
furloughs were causing. This included measures to reschedule
IEP services. Specific steps were taken for the individual chil-
dren as well. For example, there were proposals to extend
N.D.’s school day by eighty minutes for the four days during
furlough weeks or offer some IEP services in N.D.’s home.
The State’s declarations also indicated that N.D. and the other
children were not exhibiting any changes in behavior.
[9] The declarations from the children documented their
actual behavior following the furloughs, and included obser-
vations from the children’s parents and from special education
teachers.7 In contrast, the declarations from the State were all
quo means “the last, uncontested status which preceded the pending con-
troversy.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
571 F.3d 873, 879 (9th Cir. 2009) (citation omitted). While at the time the
suit was filed on October 20, 2009 the furlough contracts had been signed
already, no furlough days had been taken yet. Therefore, the injunction
would maintain the status quo of no furlough days and is a prohibitory
injunction — not a mandatory injunction.
7
N.D. submitted additional declarations regarding the harm suffered by
the children on appeal and asked for the Court to take judicial notice of
them. We decline to do so. We view only the district court record on
appeal. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). Judicial
notice is only appropriate for matters “ ‘generally known within the terri-
torial jurisdiction of the [ ] court’ or ‘capable of accurate and ready deter-
mination by resort to sources whose accuracy cannot reasonably be
questioned.’ ” Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104,
1110 (9th Cir. 2006) (en banc) (quoting Fed. R. Evid. 201). The declara-
tions do not fall into either of the above categories. The status of the dis-
N. D. v. STATE OF HAWAII 5181
attempted ameliorative steps or were vague. Although the
State submitted numerous declarations, it is hard to see how
the district court abused its discretion. Based on the evidence
presented to the district court, it was reasonable for the court
to conclude that the furloughs would cause irreparable harm.
[10] Proceeding to the balance of the equities, the district
court found that the balance of the equities was a “close ques-
tion” and could not say that “the equities particularly tip in
favor of the plaintiffs.” The district court considered the
money that would not have to be spent keeping the schools
open, and the layoffs that might need to occur if the State did
not implement the furloughs, against the harm the children
were suffering as a result of the furloughs. In particular the
district court noted that the furloughs were “the least bad of
all the bad choices you can make.” The district court did not
abuse its discretion in determining that the equities were
“fairly balanced.”
[11] We now turn to the public interest. N.D. argues that
the public’s interest is in having the State comply with the
IDEA. While it is obvious that compliance with the law is in
the public interest, the district court looked to many more fac-
tors affecting the public interest. The district court noted that
the public certainly did not benefit from a decrease in the
number of instructional days. However, the district court con-
sidered this against the potential for increased class sizes if
the State had to layoff teachers. The court noted that the
deprivation of special education to the disabled children did
not outweigh the decrease in educational quality related to
larger class sizes. The district court ultimately concluded that
abled children is not generally known throughout the jurisdiction of the
Ninth Circuit nor are the parents sources whose accuracy cannot reason-
ably be questioned. See Reusser v. Wachovia Bank, N.A., 525 F.3d 855,
858 n.3 (9th Cir. 2008); Turnacliff v. Westly, 546 F.3d 1113, 1120 n.5 (9th
Cir. 2008).
5182 N. D. v. STATE OF HAWAII
the public interest did not particularly favor the plaintiffs
although they did “make out a strong case.” This finding of
fact by the district court is not an abuse of discretion either.
The public interest on both sides is great and as the district
court recognized, it is difficult to quantify the harm on both
sides.
C.
[12] What this case turns on, as the district court recog-
nized, is N.D.’s likelihood of success on the merits of his suit.
The heart of the case is whether the furloughs are a change in
the educational placement of the disabled children such that
the stay-put provisions apply. The question of whether
§ 1415(j) applies is a legal one. If N.D. can prove that he is
likely to succeed on the merits — i.e., that the furloughs are
a change in educational placement — then the district court
arguably abused its discretion and a preliminary injunction
should issue. United States v. Hinkson, 585 F.3d 1247, 1261-
62 (9th Cir. 2009) (en banc).
[13] Under the IDEA, 20 U.S.C. § 1415(j) provides that
“[d]uring the pendency of any proceedings conducted pursu-
ant 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.” See also 34
C.F.R. § 300.518(a) (2006). A parent can request a due pro-
cess hearing and invoke the stay-put provision when the State
proposes to change the child’s educational placement. 34
C.F.R. § 300.507 (2006); 34 C.F.R § 300.503(a) (2006).
[14] As we have recognized, the difficulty in determining
whether there has been a change lies with the lack of a defini-
tion of “current educational placement” within the IDEA.
L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 902 (9th
Cir. 2009), cert. denied 130 S. Ct. 90 (2009). We have inter-
preted “current educational placement” to mean “the place-
ment set forth in the child’s last implemented IEP.” Id. We
N. D. v. STATE OF HAWAII 5183
have offered no additional guidance on the issue. N.D.’s last
implemented IEP was for the 2009-2010 school year and was
agreed upon before the furloughs were implemented. N.D. has
not been moved from the school identified in his IEP.8
We have addressed changes in educational placement under
the IDEA only on one prior occasion. In Johnson ex rel. John-
son, plaintiff’s parents filed suit on behalf of their autistic
child when he turned three and was to be transferred between
different educational agencies. 287 F.3d at 1181. Plaintiffs
alleged that under “stay-put” their child was entitled to the
“exact same program and vendors” that were provided previ-
ously. Id. at 1179. We held that the IDEA does not require the
exact same vendors to provide the services and transfer of the
child was appropriate because the new educational agency
could “meet the requirements of the ‘stay put’ provision by
providing comparable educational placement.” Id. at 1181.
Johnson ex rel. Johnson provides little guidance in this case.
Johnson ex rel. Johnson dealt with an individual child and his
transfer between agencies. Id. This case deals with a state
wide systematic change that affects all school children. John-
son ex rel. Johnson also dealt only with a change in vendors.
Id. In this instance, there is no change in vendors, only a
shortening of the school year.
Without a definition of educational placement in the statute
or any binding precedent, we must “find that interpretation
which can most fairly be said to be imbedded in the statute,
in the sense of being most harmonious with its scheme and
with the general purposes that Congress manifested.” United
States v. Alghazouli, 517 F.3d 1179, 1184 (9th Cir. 2008)
(quotation marks and citations omitted), cert. denied 129 S.
8
N.D.’s IEP provided for various services. Some were to be measured
by the amount of instruction (in minutes or hours) per week, month, or
quarter. The only daily services provided were the use of visual aids and
schedules, a sensory diet, and a daily communication log between school
and home for all providers working with N.D.
5184 N. D. v. STATE OF HAWAII
Ct. 237 (2008). Following the Supreme Court’s guidance, we
have recognized that the purpose of the stay-put provision
was to “strip schools of the ‘unilateral authority they had tra-
ditionally employed to exclude disabled students . . . from
school’ and to protect children from any retaliatory action by
the agency.” Johnson ex rel. Johnson, 287 F.3d at 1181 (cit-
ing Honig v. Doe, 484 U.S. 305, 323 (1988)). The Supreme
Court has also found that another purpose of the stay-put pro-
vision was to “prevent school officials from removing a child
from the regular public school classroom over the parents’
objection” which resulted from Congress’s concern “about the
apparently widespread practice of relegating handicapped
children to private institutions or warehousing them in special
classes.” Sch. Comm. of the Town of Burlington, Mass. v.
Dep’t of Educ. of Mass., 471 U.S. 359, 373 (1985). Congress
was concerned with the “total exclusion” of disabled children.
Honig, 484 U.S. at 325 n.8.
We also look to Congress’s overall expressed intent in the
statute. Congress has been very clear about stating its overar-
ching goals in relation to the IDEA. Part of Congress’s con-
cern was that “children were excluded entirely from the
public school system and from being educated with their
peers.” 20 U.S.C. § 1400(c)(2)(B) (2006). To alleviate that,
disabled children were to have “access to the general educa-
tion curriculum in the regular classroom, to the maximum
extent possible.” § 1400(c)(5)(A). We extract from the statute
that the overarching goal of the IDEA is to prevent the isola-
tion and exclusion of disabled children, and provide them
with a classroom setting as similar to non-disabled children as
possible.
The agency’s implementation of the statute provides further
insights and supports the idea that placement relates to the
classroom setting. The “continuum of alternative placements”
includes “instruction in regular classes, special classes, spe-
cial schools, home instruction, and instruction in hospitals and
institutions.” 34 C.F.R. § 300.115(b)(1) (2006). The main
N. D. v. STATE OF HAWAII 5185
concern with placement is “mainstreaming” disabled children
and the regulations provide that disabled children are to be
educated “[t]o the maximum extent appropriate . . . with chil-
dren who are nondisabled.” 34 C.F.R. § 300.114(a)(2)(I)
(2006). This reasonable agency interpretation of the IDEA is
entitled to deference. Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984).
Other Circuits have also attempted to divine the meaning of
“current educational placement.” The leading case is Con-
cerned Parents & Citizens for Continuing Educ. at Malcolm
X (PS 79) v. New York City Bd. of Educ., 629 F.2d 751 (2d
Cir. 1980). In Concerned Parents, the Second Circuit was
faced with the shut down of one public school and the transfer
of all handicapped children at that school to another school.
Id. at 752. The court considered the stay-put provision of the
IDEA’s predecessor. The court considered the way the statute
used the term “educational placement,” the legislative history,
and the implementing regulations. Id. at 754. The court held
that “educational placement” referred only to “the general
educational program in which the handicapped child is
placed.” Id. at 756. The children’s placements were not
changed because they “remain[ed] in the same classification,
the same school district, and the same type of educational pro-
gram special classes.” Id. As an example, the court indicated
that a transfer of a disabled child from a special class in a reg-
ular school to a special school would be a change in educa-
tional placement. Id. at 754.
The Fourth Circuit has also performed a more recent exten-
sive analysis of the meaning of current educational placement
under the IDEA. A.W. ex rel Wilson v. Fairfax County Sch.
Bd., 372 F.3d 675 (4th Cir. 2004). After looking at Supreme
Court cases, the statute, implementing regulations, and other
Circuits’ cases, the court concluded that educational place-
ment meant “the overall instructional setting in which the stu-
dent receives his education.” Id. at 683. A.W. ex rel Wilson
also dealt with the transfer of an individual student between
5186 N. D. v. STATE OF HAWAII
“materially identical settings.” Id. Based on its definition of
current educational placement, the Fourth Circuit found that
the disabled child’s transfer did not violate the stay-put provi-
sions. Id. at 683-84.
Other circuit courts have adopted similar definitions to the
Second and Fourth Circuits’ definitions using similar reason-
ing. See, e.g., DeLeon v. Susquehanna Cmty. Sch. Dist., 747
F.2d 149, 153-54 (3d Cir. 1984) (noting that the stay-put pro-
vision “does not entitle parents to the right to demand a hear-
ing before a minor decision alters the school day of their
children” and finding that a change in transportation services
was not a change in placement); White ex rel. White v. Ascen-
sion Parish Sch. Bd., 343 F.3d 373, 380 (5th Cir. 2003)
(placement does not mean a “particular school,” and instead
means “a setting”); Tilton v. Jefferson County Bd. of Educ.,
705 F.2d 800, 803-04 (6th Cir. 1983) (distinguishing Con-
cerned Parents in finding a change in placement when stu-
dents were transferred from a year-round school to a 180-day
program); Bd. of Educ. of Cmty. High Sch. Dist. No. 218,
Cook County, Ill. v. Ill. State Bd. of Educ., 103 F.3d 545, 549
(7th Cir. 1996) (applying a fact-driven approach and finding
that expulsion was a change in educational placement but
when fiscal concerns cause a student to be transferred, the
focus is on the child’s general educational program); Hale ex
rel. Hale v. Poplar Bluff R-I Sch. Dist., 280 F.3d 831, 833-34
(8th Cir. 2002) (per curiam) (change from home to school was
a change in placement); Lunceford v. Dist. of Columbia Bd.
of Educ., 745 F.2d 1577, 1582-83 (D.C. Cir. 1984) (change in
feeding treatment not a change in placement).
[15] Based on Supreme Court case law, Congress’s
express intent in the statute, the agency’s implementing regu-
lations, and sister circuits’ decisions, we hold that “educa-
tional placement” means the general educational program of
the student. More specifically we conclude that under the
IDEA a change in educational placement relates to whether
the student is moved from one type of program — i.e., regular
N. D. v. STATE OF HAWAII 5187
class — to another type — i.e., home instruction. A change
in the educational placement can also result when there is a
significant change in the student’s program even if the student
remains in the same setting. This determination is made in
light of Congress’s intent to prevent the singling out of dis-
abled children and to “mainstream” them with non-disabled
children.
[16] Following this definition, Hawaii’s teacher furloughs
and concurrent shut down of public schools is not a change
in the educational placement of disabled children. Similar to
the children in Concerned Parents, the children here stay in
the same classification, same school district, and same educa-
tional program. The children have not been reclassified with
different handicaps. The children continue to attend the same
school, have the same teachers, and stay in the same classes.
The educational setting of the disabled children remains the
same post-furloughs.
When Congress enacted the IDEA, Congress did not intend
for the IDEA to apply to system wide administrative deci-
sions. Hawaii’s furloughs affect all public schools and all stu-
dents, disabled and non-disabled alike. An across the board
reduction of school days such as the one here does not con-
flict with Congress’s intent of protecting disabled children
from being singled out. In comparison to cases in which a
child is singled out in relation to her peers, the furlough days
do not remove the plaintiffs from the regular classroom set-
ting anymore than they do the other children. Disabled chil-
dren are not singled out for furlough days. To the extent
possible under the new school calender, the disabled children
are still “mainstreamed” with regular children at school. To
allow the stay-put provisions to apply in this instance would
be essentially to give the parents of disabled children veto
power over a state’s decisions regarding the management of
its schools. The IDEA did not intend to strip administrative
powers away from local school boards and give them to par-
ents of individual children, and we do not read it as doing so.
5188 N. D. v. STATE OF HAWAII
Two cases could be construed as providing contrary author-
ity to the above conclusion. In Drinker by Drinker v. Colonial
Sch. Dist., 78 F.3d 859, 865 (3d Cir. 1996), the Third Circuit
indicated that a cut off of public funds “amount[s] to a unilat-
eral change in placement.” However, Drinker actually sup-
ports our conclusion because the funding cut-off
contemplated there is a complete cut-off of funding for pri-
vate placement, effectively eliminating private placement as
an alternative setting. Id. Here there is no such complete cut-
off. The State continues to finance the educational placement,
it just does so with slightly fewer school days.
In Tilton, disabled children were transferred from a year-
round school to 180-day programs. 705 F.2d at 804. The court
ruled that such a change constituted a change in educational
placement. Id. This case is different, as the Sixth Circuit rec-
ognized, because year-round school versus the 180-day school
reflects two completely different educational programs. The
two programs were not comparable. Here, however, the cut in
the number of days does not change the model of education,
and the educational setting and program pre- and post-
furlough are comparable.9
Finally, plaintiffs argue that because their current IEPs are
their current educational placement and assume a five day
school week, the reduction of the school week constitutes a
change in the general educational program of the student.
While they certainly assume some five day weeks, the IEPs
also assume that there are some four day weeks when there
are federal and state holidays. Those four day weeks are not
mentioned explicitly in the IEPs. The four day weeks created
by the furloughs are no different and do not constitute
changes in N.D.’s educational program.
9
Tilton suggests that there is an exception to the IDEA for changes in
educational placement that are a result of fiscal policy. Tilton, 705 F.2d
at 804. We do not reach this question because we conclude that there has
not been a change in educational placement.
N. D. v. STATE OF HAWAII 5189
Our conclusion does not mean, however, that States and
school boards can make any administrative change, in terms
of cutting school days, without triggering the stay-put provi-
sions. Our holding is that under the facts of this case § 1415(j)
is not triggered. Nor does our conclusion leave the parents of
disabled children with no means of redress. N.D.’s claim is
more properly characterized as a “material failure to imple-
ment the IEP.” Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d
811, 822 (9th Cir. 2007). A school district’s failure to provide
the number of minutes and type of instruction guaranteed in
an IEP could support a claim of material failure to implement
an IEP. The agency is required to address such a claim with
a due process hearing, and full judicial review is available.
However, a material failure claim does not trigger the stay-put
provisions. See 20 U.S.C. § 1415(j) (2006).
[17] We affirm the order of the district court denying
plaintiff’s motion for a preliminary injunction.
AFFIRMED.