United States District Court, S.D. California
E. M., Plaintiff,
POWAY UNIFIED SCHOOL DISTRICT, Defendant. POWAY UNIFIED SCHOOL DISTRICT, Counter Claimant,
E. M., Counter Defendant.
ORDER ON PLAINTIFF'S MOTION FOR STAY PUT
JEFFREY T. MILLER STATES DISTRICT JUDGE
and Counter Defendant E.M. (“Plaintiff”), by and
through his parents Nathan and Doreen Miller, move the court
for a “stay put” placement during the pendency of
this action. (Doc. No. 12.) Defendant and Counter Claimant
Poway Unified School District (the “District”)
does not oppose. For the reasons stated below, the court
grants Plaintiff's motion.
April 15, 2019, Plaintiff, by and through his parents, filed
a complaint seeking to overturn an unfavorable decision by
the California Office of Administrative Hearings
(“OAH”) and alleging the District failed to
provide him with a free and appropriate education in
accordance with the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1400 et
seq. (Doc. No. 1, “Compl.”) Plaintiff is a
nine-year-old boy in the fourth grade. (Compl. ¶ 7.) In
February 2017, an Individualized Education Program team
(“IEP team”) agreed to remove Plaintiff from
general education and place him in the District's autism
spectrum disorder-special day class (“ASD-SDC
program”) at Westwood Elementary School. (Compl. ¶
9.) Plaintiff is currently in the ASD-SDC program at Westwood
Elementary School. (Compl. ¶ 10.) In his motion,
Plaintiff represents that on December 14, 2017, the IEP team
agreed upon and implemented a new IEP offering Plaintiff
specialized academic instruction, occupational therapy,
speech and language services, individual counseling, and
placement in the ASD-SDC program at Westwood. (Doc. No. 12 at
3; Doc. No. 12-2, Exh. 1 at 2.) The District later recommended
placing Plaintiff in a nonpublic school, which
Plaintiff's parents challenged. (Compl. ¶¶
12-17.) On June 18, 2018, Plaintiff filed a request for a due
process hearing with OAH challenging the District's
recommendation of a nonpublic school placement. (Compl.
¶ 18.) Ultimately, an administrative law judge ruled in
the District's favor and Plaintiff appealed to this
court. (Compl. ¶¶ 25-31.)
complaint arises under IDEA. Section 1415(j) of the Act
requires that, when a due-process complaint has been filed,
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.
20 U.S.C. § 1415(j). Accord 34 C.F.R. §
300.518(a). “A motion for stay put functions as an
‘automatic' preliminary injunction, ”
Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d
1036, 1037 (9th Cir. 2009), so “a student who requests
an administrative due process hearing is entitled to remain
in his educational placement regardless of the strength of
his case or the likelihood he will be harmed by a change in
placement.” A.D. ex rel. L.D. v. Hawaii Dep't
of Educ., 727 F.3d 911, 914 (9th Cir. 2013).
phrase “‘educational placement' means the
general educational program of the student.” N.D.
ex rel. parents acting as guardians ad litem v. Hawaii
Dep't of Educ., 600 F.3d 1104, 1116 (9th Cir. 2010).
“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.”
N.E. by & through C.E. & P.E. v. Seattle Sch.
Dist., 842 F.3d 1093, 1096 (9th Cir. 2016). In a series
of cases, the Ninth Circuit has “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.” N.E., 842 F.3d at 1096.
Plaintiff and the District have not otherwise agreed to
Plaintiff's placement. Thus, the issue is what
Plaintiff's “current educational placement”
was on the day he filed his complaint with OAH. Plaintiff
filed a request for a due process hearing on June 18, 2018.
Plaintiff represents that the December 14, 2017 IEP is the
last agreed upon and implemented IEP prior to the filing of
an OAH complaint. (Doc. No. 12 at 3.) Because the District
does not dispute this factual assertion or oppose Plaintiffs
motion, the court accepts Plaintiffs representation as true.
Accordingly, the court grants Plaintiffs motion for stay put
placement in accordance with the December 14, 2017 IEP during
the pendency of this action.
court grants Plaintiffs motion for stay put placement during
the pendency of this action (Doc. No. 12).