287 F.3d 1176 (9th Cir. 2002) (9th Cir. 2002), 01-16274, Johnson ex rel. Johnson v. Special Educ. Hearing Office, State of Cal.

Docket Nº:01-16274
Citation:287 F.3d 1176
Party Name:Johnson ex rel. Johnson v. Special Educ. Hearing Office, State of Cal.
Case Date:April 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1176

287 F.3d 1176 (9th Cir. 2002)

Nicholas JOHNSON; a minor by Julie JOHNSON, the natural mother and Guardian Ad Litem, Plaintiff-Appellant,


SPECIAL EDUCATION HEARING OFFICE, STATE OF CALIFORNIA; Clovis Unified School District; Walter L. Buster, individually REC/DLB and as Superintendent of the Clovis Unified School District; Janet Van Gelder, individually and in her official capacity as the Director of Special Education for the Clovis Unified School District, Defendants-Appellees.

No. 01-16274.

United States Court of Appeals, Ninth Circuit

April 26, 2002

Argued and Submitted Jan. 16, 2002.

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[Copyrighted Material Omitted]

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Shelli J. Lewis, Law Office of Shelli J. Lewis, Corona, CA, for the plaintiff-appellant.

Don Gonzales, Law Office of Shelli J. Lewis, Corona, CA, for the plaintiff-appellant.

Gregory J. Rolen, Miller, Brown & Dannis, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, District Judge, Presiding. D.C. No. CV-00-07096-REC/DLB.

Before GOODWIN, NOONAN, and TROTT, Circuit Judges.




Nicholas Johnson ("Nicholas"), by and through his mother, Julie Johnson, appeals the district court's denial of a preliminary injunction sought by them to modify the "stay put" order entered by the California Special Education Hearing Office ("Hearing Office"). Nicholas argues that under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400-91 ("IDEA"), a request for a preliminary injunction to maintain the educational status quo of a disabled child must be automatically granted, and therefore the district court's consideration of the traditional preliminary injunction factors was error. Because we find that the district court used the appropriate legal standard, we affirm.


Nicholas is an autistic child eligible for educational assistance under IDEA. IDEA creates a substantive right to education. Its main purpose is to provide disabled children with "free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). IDEA accomplishes this goal by funding state and local agencies that comply with its goals and procedures. Id. § 1412.

For each child covered by IDEA, an education program team, consisting of the child's parents, teachers and representatives from the responsible education agency, crafts an annual Individual Education Program ("IEP"). The IEP addresses: 1) the child's goals and objectives, 2) the educational services to be provided, and 3) an objective method of evaluating the child's progress. Id. §§ 1401(11), 1414(d). However, when a child is under three years old, an Individualized Family Service Plan ("IFSP") is created instead of an IEP. The IFSP focuses on the infant's developmental needs, as well as requirements of the child's family.

Before Nicholas turned three, he received services pursuant to his IFSP from the Central Valley Regional Center ("Regional Center"). The Regional Center contracted with Central Valley Autism Project ("Autism Project") to provide thirty-five hours per week of individualized therapy and ten hours per week of supervision. By law, the Regional Center was responsible for Nicholas's educational needs until Nicholas was three-years old. 20 U.S.C. §§ 1431-1445.

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When Nicholas celebrated his third birthday on November 11, 2000, his education became the responsibility of Clovis Unified School District ("Clovis"). Clovis met with Nicholas's parents in an effort to create an IEP, as required by IDEA, but they were unable to agree on a suitable plan. On November 6, 2000, Clovis proposed an interim educational placement utilizing the same goals and objectives as Nicholas's IFSP, including a thirty-five hour per week discrete trial training home program like that implemented by the Autism Project under his IFSP. In order to provide conformity for Nicholas, Clovis subsequently offered to provide Autism Project tutors for his discrete trial training. Unsatisfied with the proposed interim placement, Nicholas's parents initiated a due process hearing with the Hearing Office. Their goal was to maintain the status quo.

Pursuant to IDEA's protective provisions, Nicholas filed also a separate request for a "stay put" order with the Hearing Office. IDEA states:

[D]uring the pendency of any proceedings conducted pursuant to [§ 1415], unless the State or local educational agency and the parents otherwise agree,the child shall remain in the then-current educational placement of such child.

Id. § 1415(j) (emphasis added). Section 1415(j), commonly referred to as the "stay put" provision, requires the educational agency to maintain a disabled child's educational program until any placement dispute between the agency and the child's parents is resolved. 1

Because he had no IEP, Nicholas contended that the placement contained in his existing IFSP was his "stay put" placement, and therefore, that Clovis was required to provide the exact same program and vendors as the Regional Center provided under his IFSP. In response, the Hearing Office's "stay put" order did require Clovis to maintain Nicholas's education placement and services pursuant to his IFSP, although it noted that Clovis "need not utilize the same vendors who provided services under that IFSP." Nicholas was not satisfied with this alteration of his program even though his existing tutors remained the same.

On December 11, 2000, Nicholas filed a complaint in district court seeking a preliminary injunction against, and an order temporarily restraining, the Hearing Office's "stay put" order. Nicholas's proposed injunction required that the Hearing Office issue a new "stay put" order that forced Clovis to use the same tutors, vendors, and supervisory services used by the Regional Center. The district court denied Nicholas's request for a preliminary injunction. Nicholas appeals.


I Standard of Review

We review a district court's denial of a preliminary injunction for an abuse of discretion. Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). If the district court relied on an erroneous legal standard or committed an error of law, we review the legal questions de novo. Brookfield Communications, Inc. v. West Coast Entm't Corp., 174 F.3d 1036, 1046 (9th Cir. 1999).

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II The District Court Applied the Correct Preliminary Injunction Standard

Nicholas argues that the "stay put" provision of IDEA requires the district court to ignore what the Hearing Office did and issue a no-questions-asked, "automatic injunction" against any change in his placement. Thus,...

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