556 F.3d 900 (9th Cir. 2008), 07-55469, L.M. v. Capistrano Unified School Dist.

Docket Nº:07-55469, 07-56373, 07-55585, 07-55758.
Citation:556 F.3d 900
Party Name:L.M., a minor by and through his Guardian Ad Litem, Sam M. and Mariette M.; Sam M., on his own behalf; Mariette M., on her own behalf, Plaintiffs-Appellees, v. CAPISTRANO UNIFIED SCHOOL DISTRICT, Defendant-Appellant. L.M., a minor by and through his Guardian Ad Litem, Sam M. and Mariette M.; Sam M., on his own behalf; Mariette M., on her own behalf
Case Date:August 19, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 900

556 F.3d 900 (9th Cir. 2008)

L.M., a minor by and through his Guardian Ad Litem, Sam M. and Mariette M.; Sam M., on his own behalf; Mariette M., on her own behalf, Plaintiffs-Appellees,

v.

CAPISTRANO UNIFIED SCHOOL DISTRICT, Defendant-Appellant.

L.M., a minor by and through his Guardian Ad Litem, Sam M. and Mariette M.; Sam M., on his own behalf; Mariette M., on her own behalf, Plaintiffs-Appellees,

v.

Capistrano Unified School District, Defendant-Appellant.

L.M., a minor by and through his Guardian Ad Litem, Sam M. and Mariette M.; Sam M., on his own behalf; Mariette M., on her own behalf, Plaintiffs-Appellants,

v.

Capistrano Unified School District, Defendant-Appellee.

L.M., a minor by and through his Guardian Ad Litem, Sam M. and Mariette M.; Sam M., on his own behalf; Mariette M., on her own behalf, Plaintiffs-Appellees,

v.

Capistrano Unified School District, Defendant-Appellant.

Nos. 07-55469, 07-56373, 07-55585, 07-55758.

United States Court of Appeals, Ninth Circuit.

August 19, 2008

Argued and Submitted June 3, 2008.

Amended Feb. 13, 2009.

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[Copyrighted Material Omitted]

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S. Daniel Harbottle, Rutan & Tucker, LLP, Costa Mesa, CA, for the defendant-appellant/appellee.

Bruce E. Bothwell, Law Office of Bruce E. Bothwell, Long Beach, CA, for the plaintiff-appellee/appellant.

Appeal from the United States District Court for the Central District of California, Audrey B. Collins, District Judge, Presiding. D.C. No. CV-06-03049-ABC.

Before: DIARMUID F. O'SCANNLAIN and RICHARD C. TALLMAN, Circuit Judges, and JAMES K. SINGLETON,[*] Senior District Judge.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The Opinion filed on August 19, 2008, is AMENDED as follows:

The text following Section IV of the slip opinion appearing at pages 11021-11023, is DELETED and REPLACED with the following:

Parents challenge the district court's denial of a " stay put" order pursuant to 20 U.S.C. § 1415(j). The " pendent placement" or " stay put" provision requires the child to remain in his " current educational placement" during the course of administrative and judicial proceedings. Id. ; Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 82 (3d Cir.1996). Section 1415(j) states:

Except as provided in subsection (k)(4) of this section, during 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.

The IDEA does not define the phrase " current educational placement." Courts have generally interpreted the phrase to mean the placement set forth in the child's last implemented IEP. Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir.2002) (" typically the placement described in the child's most recently implemented IEP" ); Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir.1990) (" [the placement at the time of] the previously

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implemented IEP" ); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d Cir.1996) (" the dispositive factor in deciding a child's ‘ current educational placement’ should be the [IEP] ... actually functioning when the ‘ stay put’ is invoked." ) (internal quotation marks and citation omitted).

Alternatively, if the student has no implemented IEP because he is applying for initial admission to public school, the parents may consent to the student being placed in public school during the pendency of administrative proceedings. In that case, even if the parents disagree with the school's initial proposed placement, the public school becomes the child's " current educational placement" for purposes of a " stay put" action. See 20 U.S.C. § 1415(j).

L.M. does not fit into either of these common " current educational placement" categories. First, he never had an implemented IEP. The District and Parents never agreed on a placement for L.M. Second, at the time this litigation commenced, L.M. was making his initial application for public school. But rather than consenting to L.M. being placed in a public school for the duration of the litigation as provided for in § 1415(j), Parents unilaterally placed L.M. in a very expensive private program.

Therefore, Parents' only viable argument for entitlement to " stay put" is to construe the district court's March 13, 2007, reimbursement order as creating a " current educational placement" implied by law. Clovis Unified Sch. Dist. v. Cal. Office of Admin. HearingS, 903 F.2d 635, 641 (9th Cir.1990) (per curiam) (discussing Sch. Comm. of the Town of Burlington v. Mass. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), and concluding that " once the State educational agency decided that the parents' placement was the appropriate placement, it became the ‘ then current educational placement’ within the meaning of section 1415" ); see Mackey, 386 F.3d at 163 (" ‘ once the parents' challenge [to a proposed IEP] succeeds ..., consent to the private placement is implied by law, and the requirements of § 1415(j) become the responsibility of the school district.’ " ) (alterations in original) (quoting Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2d Cir.2002)). Where the agency or the court has ruled on the appropriateness of the educational placement in the parents' favor, the school district is responsible for appropriate private education costs regardless of the outcome of an appeal. Clovis, 903 F.2d at 641.

Parents argue their private placement is L.M.'s " current educational placement" because they prevailed before the district court in their procedural challenge. See Mackey, 386 F.3d at 163. However, in each of the cases where a court implied a " current educational placement," the court or agency below had expressly deemed the private placement appropriate. In Mackey, a State Review Officer (" SRO" ) considered the two plans, found the public placement inappropriate, and concluded the student's needs were met at the private school the parents had chosen. 386 F.3d at 162. In Clovis, the administrative hearing officer explicitly found the private hospital placement was appropriate. 903 F.2d. at 639. In Schutz, the hearing officer made a " determination that the services selected by the parents were appropriate." 290 F.3d at 484-85.

On the basis of those findings on the merits, the reviewing courts could imply " current educational placements" for the purpose of § 1415(j). The Mackey court reasoned that " [t]he regulations provide that a child's current placement may be changed upon agreement between the parents and the state, and that an SRO decision that ‘ agrees with the parents that a

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change of placement is appropriate ... must be treated as such an agreement.’ " 386 F.3d at 163 (quoting 34 C.F.R. § 300.514(a) and (c)). The court concluded Mackey's pendency placement changed " once the SRO rendered a decision." Id. In Clovis, we concluded the school district was responsible for maintaining the student in that placement " after the administrative decision that the placement was appropriate." 903 F.2d at 641. Similarly, the Second Circuit held in Schutz that § 1415(j) applied because the parents had successfully challenged the proposed IEP and the services chosen by the parents were appropriate. 290 F.3d at 484-85.

That did not occur here because, in reviewing the ALJ's decision, the district court found the procedural violation to be structural and ordered the specific relief requested by Parents without ever " adjudicat[ing] the appropriateness of [L.M.'s] private placement." 1 In its May 15, 2007, Order denying the stay put injunction, the district court reiterated that it had not ruled on the merits of L.M.'s placement.

Unlike in Mackey , Clovis , and Schutz , the district court here made no determination from which we can imply L.M.'s private program is his " current educational placement." Unless the district court or agency actually reaches the merits of the appropriate placement, we will not imply a " current educational placement" for purposes of § 1415(j).

Because L.M.'s private program, chosen by his parents alone, does not qualify as a " current education placement" under § 1415(j), the " stay-put" provision does not apply and the district court properly denied Parents' motion.

The panel has voted to deny the petitions for panel rehearing. Judges O'Scannlain and Tallman have voted to deny the petitions for rehearing en banc and Judge Singleton so recommends.

The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for panel rehearing and the petitions for rehearing en banc are denied.

No further petitions for rehearing en banc shall be entertained.

OPINION

TALLMAN, Circuit Judge:

L.M. is the autistic child of two loving parents, Samuel and Mariette (collectively " Parents" ), who have spared no expense to obtain private in-home treatment for their developmentally disabled son. The local Capistrano Unified School District (" District" ) balked at the idea of continuing the in-home educational plan at public expense and offered an alternative plan. The matter ended up before an administrative law judge in California who conducted a four-day evidentiary hearing to resolve the dispute, ultimately ruling in favor of the District.

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