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Case No.

18-55779
__________________________

IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________________________________

RIVER SPRINGS CHARTER SCHOOL,


Defendant-Appellant,

v.

C.Q., a minor by and through Guardians ad Litem


SAKU QUEZADA and PABLO QUEZADA,
Plaintiff-Appellee.
__________________________

On Appeal from the United States District Court


for the Central District of California, Western Division
The Honorable S. James Otero, Presiding

United States District Court Case No. 5:18-cv-01017-SJO-SHK


__________________________

PLAINTIFF-APPELLEE’S ANSWERING BRIEF


__________________________

NICHOLAS & TOMASEVIC, LLP POWERS GREWAL, PLC


Craig M. Nicholas Punam P. Grewal
David G. Greco Michelle B. Powers
225 Broadway, 19th Floor 2400 East Katella, Suite 800
San Diego, California 92101 Anaheim, California 92806
Telephone: 619-325-0492 Telephone: (909) 243-2239
Facsimile: 619-325-0496 Facsimile: (888) 505-3353
Email: cnicholas@nicholaslaw.org Email: powersgrewal@gmail.com
Email: dgreco@nicholaslaw.org

Attorneys for Plaintiff-Appellee C.Q., a minor by and through Guardians Ad Litem


SAKU QUEZADA and PABLO QUEZADA
TABLE OF CONTENTS

Page
INTRODUCTION ..................................................................................................1

STATEMENT OF JURISDICTION ....................................................................2

APPLICABLE AUTHORITIES ...........................................................................3

ISSUE(S) PRESENTED.........................................................................................3

STATEMENT OF THE CASE .............................................................................4

I. The Parties Agreed to a Single-stage IEP That Placed C.Q. at a


Non Public School—Prentice—which provided C.Q. with a Free,
Appropriate Public Education ....................................................................4

II. C.Q. Continues to Attend Prentice When the IEP Team Did Not
Meet and did not Agree Upon or Offer a New Placement .......................5

III. After C.Q. Files for Due Process, The OAH Denies Her Stay Put
Motion—Issuing no Order—and Denies Her Subsequent Requests
for Clarification ............................................................................................6

IV. The District Court Grants C.Q.’s Stay Put Request .................................7

SUMMARY OF ARGUMENT .............................................................................8

ARGUMENT ........................................................................................................11

I. Congress Intended for the IDEA to Maximize Educational


Opportunities for Students with Disabilities ...........................................11

II. The District Court Applied the Correct Automatic Injunction


Standard, which Governs Regardless of Venue or Procedure...............13

A. The Automatic Injunction Standard Applies to Any


and Every Stay Put Request ...........................................................13

i
Page
B. River Springs Misplaces its Reliance on N.D. v.
Hawaii Dept. of Education, Because N.D. Did Not
Involve a Change in Placement Sufficient to Trigger
Stay Put .............................................................................................15

C. River Springs Waived its Ability to Rely on Johnson;


Regardless, Johnson is Inapposite and Must be
Limited to Its Facts ..........................................................................15

1. River Springs Never Cited Johnson Until It


Appealed to this Court ........................................................... 15

2. Johnson is Inapplicable ......................................................... 16

3. This Panel Must Clarify that Johnson Applies Only


to Cases Identical to It—Where Students Seek
Remedies Beyond Stay Put .................................................... 19

III. Prentice NPS Was C.Q.’S Current Educational Placement,


because her IEP Identified No Subsequent or Alternative
Placement and River Springs Cannot Rely on Its Attempt to
Carve Prentice Out of the Statute ............................................................22

A. The Standard of Review is Mixed ..................................................22

B. Prentice NPS Was C.Q.’s Current Educational


Placement, Because Her Operative IEP Placed Her
There .................................................................................................23

C. C.Q.’s Placement Was Not Temporary, because her


IEP Identified No Alternative, Subsequent, or Other
Permanent Placement ......................................................................24

1. This Circuit’s Case Law Provides River Springs a


Guide on How to Stage IEP Placements, and C.Q.
Should Not Suffer Because River Springs Ignored
it ............................................................................................. 24

ii
Page
2. Neither Leonard nor Verhoeven Change the
Result, because those Non-binding Cases
Considered Placements That Contained Explicit
Deadlines and Affirmatively Placed the Students
Elsewhere After Those Deadlines Expired ............................ 26

3. River Springs Cannot Rely on its Stay Put “Carve-


out” Because the Trial Court Found no Agreement
to Revoke C.Q.’s Placement and the Carve-out
Violates Public Policy ........................................................... 29

a. The District Court did not Clearly Err When


It Found the Parties Had Not Agreed to the
Carve-out Provision ......................................................29

b. As Written and Applied, the Carve-out


Provision Violates Stay Put’s Mandate .........................31

IV. This Panel Must Affirm the District Court’s Order Even If It
Reviews the Order Under the Traditional Injunction Tests,
Because C.Q. Proffered Evidence That Removal from Prentice
Would Devastate Her Educational Progress ...........................................32

A. C.Q. Satisfied the Sliding Scale Test Because She


Presented Evidence of IDEA Violations and is
Entitled to Uninterrupted Educational Access .............................32

1. C.Q. Presented Serious Questions on the Merits


Because River Springs Denied her a FAPE and
The Parties Hotly Dispute Flabob’s
Appropriateness..................................................................... 32

2. The Equities Favor C.Q., Because Her Education


Has Already Suffered and Her Access to a FAPE
Hangs in the Balance............................................................. 34

B. For Many of the Same Reasons, C.Q. Satisfies the


Winter Preliminary Injunction Test ...............................................37

iii
Page
1. C.Q. Will Succeed on the Merits, Because River
Springs Violated the IDEA When It Unilaterally
Removed Her from Prentice and Flabob is Not an
Appropriate Placement .......................................................... 37

2. C.Q. Has Suffered and Will Continue to Suffer


Irreparable Harm Without Her Academic,
Psychological, Social, Emotional, and Behavioral
Services .................................................................................. 37

3. The Equities Favor C.Q. Because River Springs


Need Only to Maintain the Status Quo to Curb the
Palpable Harm C.Q. Has Suffered and Will Suffer ............... 38

4. Public Policy Favors Keeping C.Q. In School ...................... 38

V. CONCLUSION...........................................................................................39

STATEMENT OF RELATED CASES ..............................................................40

CERTIFICATE OF COMPLIANCE .................................................................41

ADDENDUM TO PLAINTIFF-APPELLEE’S ANSWERING BRIEF

STATUTES AND REGULATIONS (CIRCUIT RULE 28-2.7) ......................42

iv
TABLE OF AUTHORITIES

Cases
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) .............................................................................. 32
Andersen ex rel. Anderson v. District of Columbia,
877 F.2d 1018 (D.C. Cir. 1989) ........................................................................... 14
Boys Markets, Inc. v. Retail Clerks Local Union, Local 770,
398 U.S. 235 (1970) ............................................................................................. 21
Computer Task Group, Inc. v. Brotby,
95 Fed. Appx. 881 (9th Cir. 2004) ....................................................................... 15
Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424 (2001) ............................................................................................. 21
D.M. v. New Jersey Dep’t of Educ.,
801 F.3d 205 (3rd Cir. 2015)................................................................................ 22
F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc.,
152 F.3d 925 (9th Cir. 1998) ................................................................................ 30
Family Mortg. Corp. No. 15 v. Greiner,
279 Fed. Appx 561 (9th Cir. 2008) ...................................................................... 30
Fed. Sav. & Loan Ins. Corp. v. Butler,
904 F.2d 505 (9th Cir. 1990) ................................................................................ 16
Flick v. Liberty Mut. Fire Ins. Co.,
205 F.3d 386 (9th Cir. 2000) ................................................................................ 21
Hart v. Massanari,
266 F.3d 1155 (9th Cir. 2001) .............................................................................. 20
Honig v. Doe,
484 U.S. 305 (1987) ................................................................................. 23, 30, 38
In re Cardelucci,
285 F.3d 1231 (9th Cir. 2002) .............................................................................. 21
Johnson ex rel. Johnson v. Special Educ. Hearing Office,
287 F.3d 1176 (9th Cir. 2002) .......................................................................passim
Joshua A. v. Rocklin Unified Sch. Dist.,
559 F.3d 1036 (9th Cir. 2009) ................................................................................ 1
L.M. ex rel Sam. M. v. Capistrano Unified Sch. Dist.,
538 F.3d 1261 (9th Cir. 2008) .............................................................................. 23

v
Leonard v. McKenzie,
869 F.2d 1558 (D.C. Cir. 1989) ....................................................................passim
Mackey v. Bd. of Educ.,
386 F.3d 158 (2d Cir. 2004) ................................................................................. 22
Marbled Murrelet v. Babbitt,
83 F.3d 1060 (9th Cir. 1996) ................................................................................ 23
Matthews v. Chevron Corp.,
362 F.3d 1172 (9th Cir. 2004). ........................................................... 23, 30, 36, 37
N.D. v. Hawaii Dep't of Educ.,
600 F.3d 1104 (9th Cir. 2010) .......................................................................... 9, 15
N.E. v. Seattle School District,
842 F.3d 1093 (9th Cir. 2016) ............................................................ 24, 25, 28, 31
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr.,
810 F.3d 631 (9th Cir. 2015) ................................................................................ 32
Prudential Real Estate Affiliates, Inc. v. PPR Reality, Inc.,
204 F.3d 867 (9th Cir. 2000) ................................................................................ 22
Ramirez v. City of Buena Park,
500 F.3d 1012 (9th Cir. 2009) .............................................................................. 23
Smith v. Chetenne Mountain Sch. Dist.,
652 Fed. Appx. 697 (10th Cir. 2016) ................................................................... 22
Stewart v. Cate,
757 F.3d 929 (9th Cir. 2014) ................................................................................ 21
Termine ex rel. Termine v. William S. Hart Union High Sch. Dist.,
219 F. Supp. 2d 1049 (C.D. Cal. Aug. 20, 2002) ............................................. 9, 16
Turner v. Clark County,
2017 WL 4274161 (D. Nev. Sept. 25, 2017) ....................................................... 32
Van Duyn v. Baker Sch. Dist.,
502 F. 3d 811 (9th Cir. 2007) ............................................................................... 36
Verhoeven v. Brunswick Sch. Comm.,
207 F.3d 1 (1st Cir. 1999) .................................................................. 10, 24, 27, 28
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................. 37

vi
Statutes

20 U.S.C. § 1400 12, 33

20 U.S.C. § 1401 11, 38

20 U.S.C. § 1414 11, 25

20 U.S.C. § 1415 12, 33

20 U.S.C. § 1415(j) 3, 8, 12

Regulations

34 C.F.R. § 300.101 .......................................................................................... 11, 38

34 C.F.R. § 300.112 .......................................................................................... 11, 38

34 C.F.R. § 300.17 ............................................................................................ 11, 38

34 C.F.R. § 300.22 .................................................................................................. 11

34 C.F.R. § 300.23 .................................................................................................. 11

34 C.F.R. § 300.320 ................................................................................................ 11

34 C.F.R. § 300.321 ................................................................................................ 11

34 C.F.R. § 300.327 ................................................................................................ 11

34 C.F.R. § 300.39 .................................................................................................. 11

34 C.F.R. § 300.503 ................................................................................................ 12

34 C.F.R. § 300.507 ................................................................................................ 12

34 C.F.R. § 300.518 ................................................................................................ 13

vii
34 C.F.R. § 300.8 .................................................................................................... 11

34 C.F.R. § 300.9 ........................................................................................ 11, 30, 31

viii
INTRODUCTION

The Individuals with Disabilities Education Act (“IDEA”) seeks to improve

education for children with disabilities. It mandates that educational institutions

develop Individualized Education Plans (“IEPs”) for students with disabilities, with

input from parents and educators (the “IEP team”). An IEP governs a student’s

educational services and placement. A student may seek judicial intervention when

a dispute arises over the IEP. During such a dispute, a student may move for a “Stay

Put” order, which keeps her in her current educational placement. “Current

educational placement” means the placement in the student’s operative IEP. A Stay

Put motion—in any forum—is an automatic injunction, so a student need not satisfy

traditional injunction standards to obtain Stay Put placement. Joshua A. v. Rocklin

Unified Sch. Dist., 559 F.3d 1036, 1037, 1040 (9th Cir. 2009).

Here, Appellant River Springs implemented an IEP that placed Appellee C.Q.

at The Prentice School (a Certified California Non Public School). An IEP dispute

arose while C.Q. was at Prentice, and C.Q. filed for a due process hearing with the

Office of Administrative Hearings (“OAH”). She sought a Stay Put order to keep

her at Prentice. The OAH denied C.Q.’s motion, issued no injunction, and did not

identify where it believed C.Q.’s appropriate placement was. The OAH’s denial

flouted the IDEA’s language and purpose. Not only did it disrupt C.Q.’s enrollment

at Prentice—the placement stated in her operative IEP—but it left C.Q. without any

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placement, in an educational void. C.Q. sought relief in District Court. The District

Court applied the automatic injunction standard, found that C.Q.’s current placement

was Prentice, and issued the Stay Put injunction. River Springs appealed, arguing:

(1) that the District Court should have applied the heightened, traditional preliminary

injunction standard; and (2) that Prentice was not C.Q.’s current placement for Stay

Put purposes, in part because (River Springs claims) the placement was temporary.

The first contention flouts the text and intent of the IDEA—to maintain

educational continuity. It also ignores the distinctions between C.Q.’s case and the

precedent upon which River Springs relies. Most importantly, it ignores that there

was no existing injunction (or Stay Put Order) in place when C.Q. went to District

Court. As such, the automatic injunction rule governs this case. Secondly, the

District Court correctly found that C.Q.’s Prentice placement was not temporary and

that her operative IEP listed no alternative placement. River Springs has not

demonstrated clear error in that finding. Last, C.Q. prevails even under the

traditional injunction analysis, because the District Court found irreparable past and

potential harm to C.Q. Thus, this Panel must affirm the District Court’s order.

STATEMENT OF JURISDICTION

Plaintiff-Appellee C.Q. agrees with Defendant-Appellant River Springs Charter

School’s Jurisdictional Statement.

2
APPLICABLE AUTHORITIES

The statute most pertinent to this appeal is the “Stay Put” statute—United

States Code, title 20, section 1415(j), which reads:

Maintenance of current educational placement. Except


as provided in subsection (k)(4), 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.

All other statutory and regulatory authorities appear in the addendum to this brief.

ISSUE(S) PRESENTED

C.Q. frames the issues in a way she believes provides more clarity and

precision:

1. Does 20 U.S.C. § 1415(j)—the Stay Put statute—mandate that District

Courts apply the “automatic injunction” standard to a student’s Stay Put request?

2. Is C.Q. entitled to Stay Put in her “current educational placement”—

Prentice Non Public School—when her operative IEP placed her there and identified

no subsequent or alternative placement?

3
STATEMENT OF THE CASE

I. The Parties Agreed to a Single-stage IEP That Placed C.Q. at a Non


Public School—Prentice—which provided C.Q. with a Free, Appropriate
Public Education

C.Q. suffers from Autism Spectrum Disorder; Oppositional Defiance

Disorder; Depressive Disorder; Social Phobia; Generalized Anxiety Disorder;

Obsessive Compulsive Disorder-Mild; ADHD; and Specific Learning Disabilities;

Pervasive Developmental Disorder; cognitive/psychological processing challenges;

fine and gross motor skills deficits; socialization problems; pragmatic and

expressive/receptive communication deficits; low adaptive skills; behavior

problems; and sensory processing deficits. [ER 124 at ¶ 9.] Thus, C.Q. must receive

education in a highly-structured learning environment with intensive peer

interaction, opportunities for building social skills and awareness, speech therapy,

occupational therapy, specialized academic instruction, and intensive supports and

services. [ER 102-103; 117 at ¶¶ 5-6; 120-21 at ¶¶ 8, 13, 15.] Because of her

disabilities, C.Q. qualifies for special education services under the IDEA.

On April 28, 2017, C.Q.’s IEP team prepared an IEP that provided various

services provisioned by a Non Public School.1 [ER 65:27–66:9, 98–101.] On May

12, 2017, C.Q.’s parents rejected River Springs’s offer to place C.Q. at Somerset

Education NPS. [ER 66:13–14, 98.] On August 4, 2017, the parties drafted an

1 Nonpublic school hereinafter is abbreviated as NPS.


4
additional document that: (1) placed C.Q. at Prentice NPS; (2) incorporated the April

28, 2017 IEP by reference; and (3) superseded all prior IEPs. [ER 102; see ER 39,

40–41.] The IEP contained the following provision:

IEP team will meet within 30 days of the start of the school
year and will review progress at the Annual Review to be
held on or before 1/12/18 and determine if services should
continue and/or if any changes are necessary. River
Springs Charter School is not offering Prentice as the
specified school for stay-put circumstances. Placement is
contingent on whether or not [C.Q.] is making sufficient
progress based on her unique needs based on data
provided.

[See ER 39.]

At Prentice, C.Q. made two years of progress in less than one year. [ER 283.]

This was a vast improvement from all her prior placements. Id.

II. C.Q. Continues to Attend Prentice When the IEP Team Did Not Meet
and did not Agree Upon or Offer a New Placement

The IEP team did not convene before January 12, 2018. ER 68:3–4. Instead,

the IEP team met on February 9, 2018, and March 2, 2018. Because the semester

had already begun, C.Q. continued to attend Prentice beyond January 12, 2018. [ER

95; ER 68:8–10.] At the IEP meeting, River Springs recommended the Flabob

Airport Preparatory Academy—a school that teaches robotics, engineering, and

rocketry. [ER 68:4–5; 120-21 at ¶¶ 12-15.] C.Q.’s parents rejected the Flabob

placement. [ER 69:16–20, 70:1–2.]

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C.Q. filed for a due process hearing with the OAH on March 21, 2013. [ER

126–152.] Two days later, River Springs terminated funding for C.Q.’s tuition at

Prentice. [ER 95.] Prentice allowed C.Q. to stay until April 19, 2018, but then she

had to withdraw because River Springs refused to pay. [See ER 294 at ¶13.] After

she left Prentice, C.Q. had no educational services provided to her. [ER 95.]

III. After C.Q. Files for Due Process, The OAH Denies Her Stay Put
Motion—Issuing no Order—and Denies Her Subsequent Requests for
Clarification

C.Q. filed a Stay Put request seeking to restore her placement at Prentice. [ER

153–169.] C.Q. amended her complaint and request for Stay Put on April 3, 2018.

River Springs opposed. [ER 219–227.] The OAH denied C.Q.’s Stay Put request,

issuing no ruling on placement—i.e., no injunction. [ER 45–46.] On April 24, 2018,

C.Q. asked the OAH to clarify whether C.Q. was entitled to remain in an NPS

placement. [ER 42, 253–257.] The OAH refused to clarify what—if anything—it

believed C.Q.’s legal educational placement to be. [ER 42; see AOB at 20,

(admitting that the OAH “did not identify what placement [C.Q.] was entitled to

pending her litigation.”).]

The OAH proceedings had two significant results: (1) there was no existing

injunction naming a placement—only a denial of such a request; and (2) therefore,

C.Q. was left in an educational void. [ER 42, 45–46.] It is important to note that

River Springs misrepresents the procedural history of this case. Its brief claims that

6
there is an existing Stay Put injunction in place, but there is not. [Compare ER 42,

45–46, with AOB at 19 (claiming C.Q. sought to “set aside the OAH order.”); id. at

39 (same).]

IV. The District Court Grants C.Q.’s Stay Put Request

Without further recourse at the OAH, C.Q. sought a Stay Put order from the

District Court. [See ER 308, Prayer for Relief, at ¶ 2.] The District Court determined

that the Prentice NPS was C.Q.’s current educational placement and granted her Stay

Put request. [ER 37–41.]

In doing so, the District Court made several factual findings. It determined

that the August 4, 2017 IEP amended the April 28, 2018 IEP—meaning that the two

documents together constituted C.Q.’s IEP, and the August 4 document controlled

if the documents conflicted. [ER 39, n.2.] Also, “the parties only knew at the signing

of the IEP that C.Q. was entitled to an NPS for the full academic year, and that the

NPS would be the Prentice School for at least the first semester.” [ER 40.] It

additionally found that “the August 4, 2017 IEP superseded any prior IEP,

guaranteed C.Q. placement at an NPS for the pendency of the 2017-2018 academic

year and did not specify . . . that RSCS would be the school C.Q. would attend

if . . . conditions for remaining at Prentice were not met.” [ER 40–41.]

River Springs claimed that C.Q.’s parents had agreed that C.Q. could not seek

Stay Put at Prentice, but the District Court found the opposite:

7
To the extent that RSCS argues that the parties “otherwise
agreed” to a specific stay-put school, the amendment
explicitly states that RSCS “is not offering” Prentice as the
specified stay-put school, not that the parties agreed that
Prentice would not be the specified stay-put school or that
another school would be designated school for stay-put
purposes.

[ER 40, n.4 (emphasis in original).] Last, Judge Otero found that “the several month

disruption in C.Q.’s education while the dispute is resolved qualifies as irreparable

harm . . . .” [ER 38, n.1.] He further noted that the “disruption led to the exact

situation that the stay-put provision attempts to foreclose: a unilateral denial of

placement to C.Q. in an educational institution that adhered to the terms of the IEP

while the parties’ dispute was resolved.” [ER 40.]

As such, the District Court ruled “barring the Court’s determination that there

was no institution that would qualify as C.Q.’s ‘then-current educational placement,’

a decision that would undercut the statute’s very purpose, the Court finds that C.Q.

was entitled to remain at Prentice during the pendency of the dispute.” [ER 41

(emphasis in original).] River Springs appealed.

SUMMARY OF ARGUMENT

Stay Put is a matter of right. 20 U.S.C § 1415(j). When a student requests a

Stay Put order, that request functions as an automatic injunction. This Circuit has

already confirmed the sweeping breadth of the Stay Put statute and the automatic

8
injunction rule. Joshua A., 559 F.3d at 1037, 1040. Here, the District Court correctly

complied with Joshua A. when it applied that rule to this case.

River Springs contends that the District Court should have utilized a

traditional preliminary injunction analysis. It relies on N.D. v. Hawaii Department

of Education, 600 F.3d 1104 (9th Cir. 2010) and Johnson ex rel. Johnson v. Special

Education Hearing Office, 287 F.3d 1176, 1176–1179 (9th Cir. 2002). Neither case

applies. First, the Stay Put statue did not apply in N.D. because N.D. involved

system-wide modifications which did not constitute changes of placement that

would trigger the Stay Put. Second, in Johnson, this Circuit held that a student must

satisfy the traditional preliminary injunction standard when he seeks to modify an

existing, appropriate Stay Put placement—i.e., get an injunction against an

injunction. That is not the case here. The OAH never issued any order or injunction

that named C.Q.’s placement. Moreover, Johnson’s facts were so unique that it

would decimate Stay Put to apply its holding outside of that case’s circumstances.

This Panel must clarify that Johnson was one of a kind. It must do so in part because

Johnson’s language has spurred confusion. See, e.g., Termine ex rel. Termine v.

William S. Hart Union High School District, 219 F. Supp. 2d 1049, 1055 (C.D. Cal.

Aug. 20, 2002) (noting that Johnson “stopped short” of explaining if its holding

applied to other factual circumstances).

9
Next, River Springs argues that Prentice could not operate as C.Q.’s Stay Put

placement because River Springs intended the placement to be temporary. However,

if River Springs wanted the placement to be temporary, it should have obtained

parental consent for a multi-stage IEP and a long-term placement goal beyond

Prentice. It did not. The District Court found that C.Q.’s single-stage IEP had only

one non-temporary placement—Prentice NPS. It also found that the operative IEP

identified no alternative placement and that C.Q.’s parents never agreed to River

Springs’ attempt to exempt the NPS from Stay Put. In doing so, the District Court

correctly distinguished the authority upon which River Springs relies, Verhoeven v.

Brunswick School Committee, 207 F.3d 1, 7–8 (1st Cir. 1999) and Leonard v.

McKenzie, 869 F.2d 1558, 1563–64 (D.C. Cir. 1989).

Last, C.Q. presented to the District Court a comprehensive factual record that

satisfies the traditional preliminary injunction analysis. That record included

declarations from medical professionals who determined C.Q. would suffer severe

emotional and educational harm if removed from Prentice. As such, even if this

Panel applies the traditional injunction standard, the District Court’s order must still

be affirmed.

10
ARGUMENT

I. Congress Intended for the IDEA to Maximize Educational Opportunities


for Students with Disabilities

Students with certain disabilities qualify for “special education” under the

IDEA. 34 C.F.R. § 300.8(a). “Special education” consists of “specially designed

instruction . . . to meet the unique needs of a child with a disability . . . .” 34 C.F.R.

§ 300.39. Educational agencies must provide this special education to qualifying

students, to meet their obligation to provide all students a Free Appropriate Public

Education (“FAPE”). 20 U.S.C. § 1401(9); 34 C.F.R. §§ 300.17, 300.101, 300.112.

The IDEA imposes procedural and substantive requirements to ensure the student

receives instruction that meets his or her needs.

One of those requirements is the creation of an Individual Education Plan

(“IEP”). The IEP is a written statement outlining the services that the educational

agency must provide and the student’s educational placement. 20 U.S.C. § 1401(14);

34 C.F.R. §§ 300.22, 300.320(a). It is developed by an IEP team, consisting of the

student’s parents, educators, and (sometimes) the student herself. 20 U.S.C.

§§ 1414(d)(1)(B)–(D); 34 C.F.R. §§ 300.23, 300.321(a). Parental participation is

paramount. E.g., 34 C.F.R. § 300.327. Likewise, parental consent is required to

execute an IEP and to begin provision of education to the student. 20 U.S.C.

§ 1414(a)(1)(d)(i); 34 C.F.R. § 300.9. Parents may rescind consent at any time. 34

C.F.R. § 300.9(c).
11
If a parent does not feel an IEP meets the student’s needs, the parent may file

for a due process hearing, where an administrative officer determines the services

and placement to which the student is entitled. 20 U.S.C. § 1415(i)(2); 34 C.F.R.

§§ 300.503, 300.507. During such a dispute, the child must remain in their “then-

current educational placement.” 20 U.S.C. § 1415(j). A parent may request an order

preserving the student’s placement—a Stay Put order. 20 U.S.C. § 1415(j). A Stay

Put request functions as an automatic injunction, meaning it “requires no specific

showing on the part of the moving party, and no balancing of equities by the court.”

Joshua A, 559 F.3d at 1039.

The IDEA’s goal is to improve “education results for children with

disabilities.” See 20 U.S.C. § 1400(c)(1). That goal guides this Circuit’s analysis of

Stay Put appeals. Joshua A., 559 F.3d at 1039–40. Thus, every decision must

endeavor to maximize students’ access to a FAPE. 20 U.S.C. §§ 1400(d)(1)(a),

1415(a); Joshua A., 559 F.3d at 1039–40 (explaining “Congress’s sense that there is

a heightened risk of irreparable harm inherent in the premature removal of a disabled

child to a potentially inappropriate educational setting.”).

[Rest of page intentionally left blank.]

12
II. The District Court Applied the Correct Automatic Injunction Standard,
which Governs Regardless of Venue or Procedure

A. The Automatic Injunction Standard Applies to Any and Every Stay


Put Request

Stay Put’s automatic injunction standard applies “during the pendency of any”

mediation, due process hearing, state administrative review, or civil action arising

from an IEP dispute—including appeals. 20 U.S.C. § 1415(j) (emphasis added); 34

C.F.R. § 300.518; Joshua A, 559 F.3d at 1038–39. By enacting the Stay Put

legislation, Congress contemplated educational continuity—maintenance of the

status quo. Id. at 1038.

In Joshua A, this Circuit found that the IDEA’s text, public policy, and case

law supported the application of the automatic injunction standard at all stages of an

IEP dispute. Id. at 1038–39. First, it rejected the defendant’s contention that section

1415(j)’s automatic standard did not apply to Ninth Circuit appeals because that

reading was “unnecessarily narrow.” Id. at 1038. It noted that Congress must have

contemplated that appeals from lower decisions would arrive at the Circuit courts

and thus that Congress intended the automatic injunction standard to apply

uniformly across all venues and throughout a dispute’s pendency. Id. It then pointed

to the IDEA’s accompanying regulations, which apply Stay Put’s automatic

injunction standard to “any . . . judicial proceeding.” Id. (citing 34 C.F.R.

§ 300.518(a) (2006) (emphasis added by court)).

13
Second, this Circuit rejected the application of an out-of-circuit case that

would have changed the standard. Joshua A, 559 F.3d at 1038 (refusing to rely on

Andersen ex rel. Andersen v. District of Columbia, 877 F.2d 1018, 1023–24 (D.C.

Cir. 1989)). It found unpersuasive Andersen’s contention that the automatic

injunction standard does not apply after a judicial body has ruled on the matter in

the first instance.2

Third, Joshua A. found that “structural and policy considerations” support the

application of the automatic injunction standard across all venues. Joshua A, 559

F.3d at 1039. “The fact that the stay put provision requires no specific showing on

the part of the moving party, and no balancing of equities by the court, evidences

Congress’s sense that there is a heightened risk of irreparable harm inherent in the

premature removal of a disabled child to a potentially inappropriate educational

setting.” Id. “It is unlikely that Congress intended [the] protective [Stay Put] measure

to end suddenly and arbitrarily before the dispute is fully resolved.” Id.

C.Q. sought a Stay Put order, so Joshua A. governs here. [Cf. ER 37–41.] The

automatic injunction standard applies.

2
In Andersen, the D.C. Circuit concluded that “[o]nce a district court has rendered
its decision approving a change in placement, that change is no longer the
consequence of a unilateral decision by school authorities; the issuance of an
automatic injunction perpetuating the prior placement [through the appeals process]
would not serve the section’s purpose.” Andersen, 877 F.2d at 1024. As discussed
above, the Ninth Circuit has rejected that approach. Joshua A., 559 F.3d at 1038.
14
B. River Springs Misplaces its Reliance on N.D. v. Hawaii Dept. of
Education, Because N.D. Did Not Involve a Change in Placement
Sufficient to Trigger Stay Put

River Springs cites two cases to support its assertion that the District Court

was obligated to apply the preliminary injunction analysis. The first is N.D. v.

Hawaii Department of Education, 600 F.3d 1104 (9th Cir. 2010).

That case does not apply here because it did not involve a change in placement

and therefore did not trigger Stay Put. In its opening paragraph, that panel held “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.” N.D., 600 F.3d at

1107. Those system-wide changes were the genesis of that student’s claims. Thus,

the N.D. panel applied the traditional preliminary injunction analysis. Because Stay

Put did not govern N.D., N.D. does not govern this case.

C. River Springs Waived its Ability to Rely on Johnson; Regardless,


Johnson is Inapposite and Must be Limited to Its Facts

1. River Springs Never Cited Johnson Until It Appealed to this


Court

As a threshold matter, River Springs waived its right to rely on Johnson or to

argue that the traditional injunction standard applies. See Computer Task Group, Inc.

v. Brotby, 95 Fed. Appx. 881, 881 (9th Cir. 2004) (holding that defendant waived

argument that district court should have applied different law when it failed to make

15
contention at district court); Federal Savings and Loan Ins. Corp. v. Butler, 904 F.2d

505, 509 (9th Cir. 1990) (same). River Springs’ opposition to C.Q.’s ex parte

application contains no citation to Johnson nor argument related to the traditional

preliminary injunction standard. [See generally ER 266-281.] Likewise, River

Springs did not discuss Johnson nor the traditional injunction test during oral

argument. [ER 1–36.] Thus, River Springs waived this argument. Nevertheless, C.Q.

addresses this argument here, because this Court should clarify that Johnson is an

oddity that does not apply to most Stay Put cases, including this one. Cf. Termine,

219 F. Supp. 2d at 1055 (noting confusion created by Johnson).

2. Johnson is Inapplicable

Johnson involved a student transitioning to an IEP from an Individualized

Family Service Plan (“IFSP”)—which is a plan that governs services provided to

students under the age of three. Johnson, 287 F.3d at 1176–79. The IFSP expired on

the student’s third birthday, and responsibility for the student’s education transferred

to a new entity—Clovis Unified School District. Clovis offered an IEP that

duplicated the services provided by the ISFP but used different vendors. Id. at 1179.

The student moved for Stay Put at the administrative level and contended that

Stay Put obligated Clovis to utilize the same vendors he enjoyed under his expired

IFSP. The administrative body granted the Stay Put order but denied the student’s

request regarding the vendors. Id. It analogized the student to a child who transfers

16
between school districts—they are entitled to the same services, but the new district

“need not, and probably could not, provide the exact same educational program.” Id.

at 1181. The student then went to district court, requesting an injunction of the

administrative Stay Put order. Id. at 1179. The district court applied the traditional

injunction analysis and denied the student’s request.

This Circuit affirmed. It held that “a request to enjoin a preexisting ‘stay put’

order is handled appropriately by the district court’s application of the traditional

preliminary injunction analysis.” Id. at 1180 (emphasis added). In doing so, it noted

that the “district court was not asked to grant an original ‘stay put’ order,” but to

“enjoin the Hearing Office’s preexisting ‘stay put’ order.” Id. The court issued this

holding “because the ‘stay put’ order accomplishing that purpose [of maintaining

the status quo] had already been granted by the Hearing Office.”3 Id. In other words,

this Circuit opined that when a student seeks to modify a Stay Put order that provides

substantially the same services they were previously receiving from a different

public entity, they must satisfy a higher standard because the IDEA’s purpose has

already been served by the new entity provisioning nearly-identical services.

3
In this way, Johnson could be viewed as a non-Stay-Put case, like N.D. In both
cases, the student was not truly seeking Stay Put, but something more. That is
why the higher showing was required in both instances.
17
C.Q.’s case differs from Johnson in procedure, substance, and policy. First,

there is no existing injunction against River Springs—the OAH issued no Stay Put

order. [ER 42, 45–46.] It denied C.Q.’s request for Stay Put and her subsequent

motions for reconsideration and clarification. [ER 42, 45–46.] It is important to note

that River Springs misrepresents the procedural history of this case. Its brief claims

that there is an existing Stay Put injunction in place, but there is not. [Compare ER

42, 45–46, with AOB at 19 (claiming C.Q. sought to “set aside the OAH order”;

AOB at 39 (same).] At the District Court, C.Q. sought a Stay Put order in the first

instance, which falls outside of Johnson’s ambit and within Joshua A’s holding. [See

ER 37–41; Johnson, 287 F.3d at 1180 (assessing only “preexisting ‘stay put’

orders”); Joshua A, 559 F.3d at 1038 (rejecting contention that the standard changes

after the first judicial decision on a Stay Put request). For these reasons, this Panel

must apply Joshua A. and hold that the automatic injunction standard applies.

Second, C.Q.’s Stay Put request does not arise in the context of a transfer

between public entities. C.Q. seeks to stay in her NPS placement at Prentice, where

she has been for the most of the 2017-2018 schoolyear. [ER 102; see ER 39, 40–41.]

As such, there is no concern here about obligating two different entities to provide

identical educational services.

Third, applying Johnson here would not serve the IDEA’s policy of

preventing school districts from locking students out of their education. See Joshua

18
A., 559 F.3d at 1039–40 (explaining “Congress’s sense that there is a heightened risk

of irreparable harm inherent in the premature removal of a disabled child to a

potentially inappropriate educational setting.”). The Johnson student maintained his

access to nearly-identical educational services. However, if the OAH’s ruling

survives here, C.Q. will be deprived of continuous and unfettered access to

education—the opposite of the result that Congress intended in enacting Stay Put.

She will have no school to attend and no services administered to her. [ER 42, 45–

46.] In other words, she would be left in an educational void. The OAH ruling does

not accomplish the purpose of Stay Put—ensuring students continuous access to

appropriate educational services—unlike the administrative order in Johnson. It

would undermine the IDEA to require C.Q. to satisfy the traditional preliminary

injunction analysis instead of Stay Put’s automatic injunction standard, because

C.Q.—unlike the Johnson student—does not seek to change an order that provides

her with the services to which she is entitled. To the contrary, she challenges a

decision that deprives her of them. [ER 42, 45–46.]

3. This Panel Must Clarify that Johnson Applies Only to Cases


Identical to It—Where Students Seek Remedies Beyond Stay Put

Johnson cannot be extended beyond its current reach. To do so would

contravene the IDEA’s text, undermine the intent of Stay Put, violate students’

fundamental rights to educational access, and impose multiple standards to the same

question depending on the presiding venue. This Panel has the first opportunity to
19
limit Johnson to its unique facts and prevent a precedential sprawl that would

controvert the IDEA’s and Stay Put’s goals. Cf. see Hart v. Massanari, 266 F.3d

1155, 1172 (9th Cir. 2001) (noting that the first panel to address an issue creates

precedent for entire circuit absent higher review).

Some of the reasons Johnson cannot be expanded are the same reasons it

cannot apply to this case. The Johnson student wanted an injunction against an

existing appropriate Stay Put order. Johnson, 287 F.3d at 1180. The Johnson court

applied an elevated standard only because the student sought relief beyond that

which Stay Put provides—he had already obtained an injunction ensuring he would

get nearly-identical educational services—and therefore his case fell outside of

section 1415(j)’s grasp. Id.

Relatedly, Johnson’s nearly-identical services sufficed only because the

student had transferred between educational providers when he turned three.

Johnson, 287 F.3d at 1181 (noting new public entity “probably could not” provide

exact same vendors as prior entity). The Johnson court found that a change in service

providers was not the type of unilateral change of placement which Congress

intended to trigger a student’s right to Stay Put. If Johnson applied to cases involving

a legitimate unilateral change of placement—such as the removal of C.Q. from her

NPS—it would circumvent Congressional intent to safeguard the rights of students

to special education access. See 20 U.S.C. § 1415(j).

20
It is also not what the Stay Put statute’s language mandates. Applied outside

itself, Johnson would directly conflict with the text of the Stay Put provision because

it would expose all Stay Put requests to a higher, non-automatic standard. That

would impose an undue burden on families seeking to return their children to class

while resolving an IEP dispute. See 20 U.S.C. § 1415(j) (applying automatic

injunction standard to mediations, administrative hearings, and district court

proceedings); Joshua A., 559 F.3d at 1038–39 (clarifying that section 1415(j) applies

to appellate proceedings).

Last, Johnson would create inconsistency if this Circuit applied its holding to

any non-identical case. The applicable injunction standard would differ depending

on whether a student sought Stay Put from a district court in the first instance or

started with the administrative officer. This Circuit condemns holdings that

undermine uniformity and predictability—it therefore must condemn an expansion

of Johnson which would do just that. See, e.g., Flick v. Liberty Mut. Fire Ins. Co.,

205 F.3d 386, 390 (9th Cir. 2000); In re Cardelucci, 285 F.3d 1231, 1236 (9th Cir.

2002); Stewart v. Cate, 757 F.3d 929, 949 (9th Cir. 2014); see also Boys Markets,

Inc. v. Retail Clerks Local Union, Local 770, 398 U.S. 235, 246 (1970) (noting

interest in “the federal policy of labor law uniformity”); Cooper Indus., Inc. v.

Leatherman Tool Grp., Inc., 532 U.S. 424, 436 (2001). That is particularly true here,

because the IDEA authorizes a Stay Put order “regardless of whether [the student’s

21
underlying] case is meritorious or not,” whereas the traditional injunction standard

requires a showing of likelihood of success on the merits. See Mackey v. Bd. of

Educ., 386 F.3d 158, 160 (2d Cir. 2004) (quoted); Prudential Real Estate Affiliates,

Inc. v. PPR Reality, Inc., 204 F.3d 867, 874 (9th Cir. 2000) (stating traditional

injunction test). Differing results would abound if differing standards applied. That

would deny justice and controvert the Stay Put statute.

In short, Johnson is an anomaly and must remain so. Joshua A. applies here.

In this case, the District Court’s only task was to determine what constituted C.Q.’s

then-current educational placement. As discussed below, it did that job correctly—

C.Q. was entitled to Stay Put.4

III. Prentice NPS Was C.Q.’S Current Educational Placement, because her
IEP Identified No Subsequent or Alternative Placement and River
Springs Cannot Rely on Its Attempt to Carve Prentice Out of the Statute

A. The Standard of Review is Mixed

A Stay Put order is reviewed de novo. Smith v. Chetenne Mountain Sch. Dist.,

652 Fed. Appx. 697, 700 (10th Cir. 2016); D.M. v. New Jersey Dep’t of Educ., 801

F.3d 205, 211 (3rd Cir. 2015). However, when the facts are disputed, factual

findings are reviewed for clear error. Matthews v. Chevron Corp., 362 F.3d 1172,

4
Though the issue is not before this Court, C.Q. notes that Johnson would not and
should not govern an appeal of a Stay Put order that placed the student in an
inappropriate educational setting. Stay Put mandates maintenance of the status quo
in an appropriate educational setting. If the educational setting was inappropriate,
imposing a higher standard would undermine Stay Put’s goals.
22
1180 (9th Cir. 2004). Thus, this Panel applies de novo review to the District Court’s

legal analysis as applied to the District Court’s factual findings, unless the District

Court clearly erred in those findings.

This Panel need not address River Springs’ evidentiary objections. A party

abandons evidentiary objections on appeal when the district court does not rule on

the objections and the party then fails to request such a ruling. See Ramirez v. City

of Buena Park, 500 F.3d 1012, 1026 (9th Cir. 2009); Marbled Murrelet v. Babbitt,

83 F.3d 1060, 1066–67 (9th Cir. 1996). That is what happened here. [ER 01–36

(reporter’s transcript), 37–41 (order).]

B. Prentice NPS Was C.Q.’s Current Educational Placement, Because


Her Operative IEP Placed Her There

Stay Put keeps a child in her “then-current educational placement” while a

dispute pends. 20 U.S.C. § 1415(j). “Current educational placement” means “the

placement described in the child’s most recently implemented IEP.” Joshua A., 559

F.3d at 1037 (quoting L.M. ex rel Sam. M. v. Capistrano Unified Sch. Dist., 538 F.3d

1261, 1270 (9th Cir. 2008)). If a school district challenges a student’s Stay Put

request, the “burden rests with the school district to demonstrate that the educational

status quo must be altered.” Honig v. Doe, 484 U.S. 305, 328 (1987).

C.Q.’s most recent operative IEP placed her at an NPS, Prentice. [ER 37–41.]

This ends the inquiry. As discussed below, River Springs’ contrary arguments are

meritless.
23
C. C.Q.’s Placement Was Not Temporary, because her IEP Identified
No Alternative, Subsequent, or Other Permanent Placement

River Springs argues that C.Q.’s placement was “temporary”—and therefore

that the order removing her from Prentice with no designated alternative should

stand—because (1) the IEP planned for a future IEP meeting to assess whether

Prentice was appropriate; and (2) River Springs tried to carve out Prentice from Stay

Put status. See AOB, at 20–30 (citing Verhoeven v. Brunswick Sch. Comm., 207 F.3d

1, 7–8 (1st Cir. 1999); Leonard v. McKenzie, 869 F.2d 1558, 1563–64 (D.C. Cir

1989)). Those contentions lack merit.

1. This Circuit’s Case Law Provides River Springs a Guide on How


to Stage IEP Placements, and C.Q. Should Not Suffer Because
River Springs Ignored it

The Ninth Circuit has validated “multi-stage” placements, which result when

an IEP sets a deadline for one placement to expire and explicitly identifies the

subsequent placement. See N.E. v. Seattle School District, 842 F.3d 1093, 1097 (9th

Cir. 2016). In N.E., 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.” Id. at 1094–95. After the 2016 school

year ended, the student moved to a new district. The new district placed the student

in a self-contained class (in the second stage of the IEP). Id. at 1095–96. The student

sought a Stay Put order placing him in an individual class, arguing that the IEP’s
24
second stage had not yet been implemented so the individual classroom was his Stay

Put placement. Id.

This Circuit disagreed. It held that N.E.’s placement was in the self-contained

class (the IEP’s second stage), because the student’s new placement ensued at the

time listed in the IEP. Id. at 1097–98. It noted that a “multi-stage IEP could be

structured as several distinct IEPs, but it need not be.” Id. at 1097. (emphasis in

original); see also 20 U.S.C. § 1414(d)(5) (describing multi-year IEPs).

The inverse is true here. C.Q.’s IEP could have been structured as a multi-

stage IEP, but it was not. [ER 99–103.] The IEP named only one placement—

Prentice NPS. [ER 102.] It contemplated a later, distinct IEP after an assessment of

whether Prentice NPS was appropriate. Unlike the N.E. student, C.Q. did not have a

multi-stage IEP, and therefore her IEP could not have spurred an automatic change

in placement. [ER 40–41 (finding that the August 4, 2017 document “did not specify

or indicate that that [River Springs] would be the school C.Q. would attend if the

conditions for remaining at Prentice were not met.”)] That is why she continued to

attend Prentice when the IEP team neglected to meet as planned. [ER 68:3–4.] Under

N.E., River Springs could have staged C.Q.’s IEP so that Prentice did not operate as

her educational placement after one semester (if C.Q.’s parents had agreed). It did

not. [ER 102.] C.Q.’s one-stage IEP lists only one placement, and that is where she

is entitled to stay while her due process hearing proceeds. [ER 37–41, 402.]

25
2. Neither Leonard nor Verhoeven Change the Result, because
those Non-binding Cases Considered Placements That
Contained Explicit Deadlines and Affirmatively Placed the
Students Elsewhere After Those Deadlines Expired

River Springs relies on the same out-of-circuit cases as the OAH did to deny

C.Q.’s Stay Put motion—Verhoeven and Leonard. That reliance is misplaced.

In Leonard, the student’s parents enrolled the student at Lab School of

Washington (a private school) after the local educational agency attempted to place

him at a public school, Prospect. Leonard, 869 F.2d at 1560. No IEP had never

placed him at Lab. Id. During the IEP dispute, the administrative hearing officer

found both Lab and Prospect appropriate to satisfy the student’s needs. Id.

Nevertheless, the hearing officer ordered the educational agency to pay for Lab until

the end of the year because the district had committed numerous procedural

violations. Id. The administrative hearing officer then notified the parties that they

should prepare for the student’s transfer to Prospect after the 1985–1986 school year.

Id. The parents again filed for due process and Stay Put, but the administrative

officer determined that Prospect was appropriate and denied the request. Id. The

parents appealed to district court, which affirmed the administrative order. Id. at

1560-61.

The D.C. Circuit affirmed. Id. at 1564. It determined that Lab was not the

student’s current educational placement because the earlier administrative order set

an end date for the student’s attendance at Lab. Id. Said differently, the student’s
26
operative educational plan moved him from Lab to Prospect after the summer break,

so the Lab placement had already ended and could not function as the operative

placement for Stay Put purposes. The D.C. Circuit emphasized that all parties knew

of the upcoming transfer. Id. (“Thus, appellants were on notice that the Lab School

would cease to be Brandon’s ‘current educational placement’ once the 1985–86

school year ended.”). The hearing officer had already found Prospect appropriate,

and therefore that placement satisfied IDEA’s twin policies of preventing

inappropriate placements and ensuring students continuous access to a FAPE.

In Verhoeven, on the heels of an IEP dispute, the student and the school district

executed a settlement that “temporarily place[d] P.J. at the Southern Maine Learning

Center [“SMLC”] through the end of the 1997–98 school year.” Verhoeven, 207 F.3d

at 3. The student was to move to Brunswick High School after June of 1998. Id. On

June 1, 1998, the student’s IEP team confirmed the Brunswick placement. In July of

1998, before the schoolyear started, the student sought due process and asked for a

Stay Put order keeping him at SMLC. Id. at 4. The administrative hearing officer

determined that Brunswick was the operative placement. Id. The student sought

relief in district court, which denied the request and agreed that Brunswick was the

student’s placement. Id.

The First Circuit upheld the district court’s order. It determined that the

operative IEP—reached on June 1—overwrote the student’s prior placement at

27
SMLC. Id. at 7–8. That panel noted that the parties’ settlement agreement expressly

stated a purpose to “transition [the student] to placement at Brunswick High School.”

Id. at 10. Therefore, it could not “be said that P.J.’s ‘current educational placement’

on July 20, 1998—the date the Verhoevens filed their challenge to the IEP reached

on June 1, 1998—was the recently ended SMLC placement.” Id. As in Leonard, this

opinion served the IDEA’s goal of ensuring continuous appropriate placement

because the student had an appropriate school to attend after summer ended.

Realistically, Verhoeven and Leonard are “multi-stage” IEP cases—like N.E.

Neither case explicitly calls the operative educational plans “multi-stage,” but that

is what they were. Stage 1 of the Verhoeven student’s plan was Lab, stage 2 was

Prospect. The Leonard plan staged the student first at SMLC and second at

Brunswick. Compare Verhoeven, 207 F.3d at 3–4, 7–8, and Leonard, 869 F.2d at

1564, with N.E., 842 F.3d at 1097.

If Verhoeven and Leonard are apples, C.Q.’s case is an orange. First, the

parties here never named or agreed to any placement succeeding Prentice—whereas

the Verhoeven student had Brunswick and the Leonard child had Prospect. [See ER

102.] Thus, C.Q. continued her education at Prentice when the parties did not agree

to a future or alternative placement and did not convene a new IEP. [ER 68:8–10,

95.] If C.Q.’s IEP had envisioned a post-Prentice placement, she automatically

would have left the NPS and transitioned to a different placement—as the Leonard

28
and Verhoeven students did—but she did not, because she could not. For the same

reasons, C.Q. had no notice that her placement could change, whereas the students

in Leonard and Verhoeven did.

Even the OAH recognized that C.Q. had no post-Prentice placement; it placed

her nowhere. [ER 42, 45–46.] That non-placement was a legal impossibility which

violated the IDEA’s mandate for a FAPE. This case contrasts Verhoeven and

Leonard because both of those students had adequate educational placements ready

for their enrollment. As such, neither case changes the result—the District Court’s

order must stand.

3. River Springs Cannot Rely on its Stay Put “Carve-out” Because


the Trial Court Found no Agreement to Revoke C.Q.’s Placement
and the Carve-out Violates Public Policy

River Springs relies on a sentence in the IEP to assert that Prentice was not

C.Q.’s Stay Put placement: “River Springs Charter School is not offering Prentice

as the specified school for stay-put circumstances.” (Referred to herein as the

“Carve-out” Provision.) [Cf. ER 52.] That contention cannot pass scrutiny.

a. The District Court did not Clearly Err When It Found the
Parties Had Not Agreed to the Carve-out Provision

The District Court found that C.Q. and her parents had not accepted the offer

of the Carve-out provision and thus found ineffective the attempt to prevent C.Q.

from staying put at Prentice NPS:

29
To the extent that RSCS argues that the parties “otherwise
agreed” to a specific stay-put school, the amendment
explicitly states that RSCS “is not offering” Prentice as the
specified stay-put school, not that the parties agreed that
Prentice would not be the specified stay-put school or that
another school would be designated school for stay-put
purposes.

[ER 40, n.4 (emphasis in original).]

River Springs ignores this finding and writes its brief as though the District

Court had found the opposite. E.g., AOB at 24. River Springs presented no argument

on why the District Court’s finding on this issue was clearly erroneous, and so it has

not met its burden to have this factual finding questioned. Cf. id. at 20–30; Matthews,

362 F.3d at 1180; Honig, 484 U.S. at 328 (placing burden on school district to

provide sufficient reasons to alter the status quo); see 20 U.S.C. § 1414(a)(1)(d)(i)

(parental consent required to validate IEP); 34 C.F.R. § 300.9 (same). Even if River

Springs had advanced that argument, it would have failed because the Ninth Circuit

heavily relies on district courts when assessing the existence or terms of parties’

agreements. See, e.g., F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 152

F.3d 925, 925 (9th Cir. 1998); Family Mortg. Corp. No. 15 v. Greiner, 279

Fed. Appx 561, 563 (9th Cir. 2008) (determining district court did not clearly err

when it found an intent to agree, despite contradictory evidence). As such, the Carve-

out provision was not part of C.Q.’s IEP and thus it does not govern her Stay Put

placement.

30
b. As Written and Applied, the Carve-out Provision Violates
Stay Put’s Mandate

Stay Put commands continuity. Joshua A., 559 F.3d at 1039–40. As written

and applied, the Carve-out Provision leaves C.Q. with no current educational

placement because it is not part of a multi-stage IEP. [See ER 42, 45–46; cf. N.E.,

842 F.3d at 1097.] As such, the OAH was unable to identify C.Q.’s placement and

so it left her with no placement at all. [ER 42, 45–46.] This Circuit cannot approve

of an IEP provision with this effect. If approved, the Carve-out Provision would

leave students with an impossible choice: challenge an IEP, request Stay Put, and be

without education; or forego challenging an IEP and accept whatever services the

district offers. That is the antithesis what the IDEA contemplates. See 20 U.S.C. §

1415(j)(i)(2)(A) (creating right to bring civil action); 20 U.S.C. § 1414(a)(1)(D)(i)

(requiring parental consent to implement IEP); 20 U.S.C. §§ 1414(d)(1)(B)–(D)

(mandating that parents and educators work together to develop IEP); 34 C.F.R. §

300.9(c) (empowering parents to revoke consent).

None of River Springs’s arguments are tenable. The automatic injunction

standard applies to this case, and C.Q.’s current educational placement was Prentice

NPS. As such, this panel must affirm the District Court’s factual findings and legal

ruling.

31
IV. This Panel Must Affirm the District Court’s Order Even If It Reviews the
Order Under the Traditional Injunction Tests, Because C.Q. Proffered
Evidence That Removal from Prentice Would Devastate Her Educational
Progress

In the Ninth Circuit, a party may choose between one of two tests to obtain a

preliminary injunction. C.Q.’s moving papers—and the District Court’s order—

satisfy both.

A. C.Q. Satisfied the Sliding Scale Test Because She Presented


Evidence of IDEA Violations and is Entitled to Uninterrupted
Educational Access

Under the “sliding scale” test, a plaintiff can obtain a preliminary injunction

by showing “that serious questions going to the merits were raised and the balance

of hardships tips sharply in the plaintiff’s favor.” Turner v. Clark County, 2017 WL

4274161, at *1 (D. Nev. Sept. 25, 2017) (quoting Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011)). The plaintiff must show “a

relationship between the injury claimed in the motion . . . and the conduct asserted

in the underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr.,

810 F.3d 631, 636 (9th Cir. 2015).

1. C.Q. Presented Serious Questions on the Merits Because River


Springs Denied her a FAPE and The Parties Hotly Dispute
Flabob’s Appropriateness

First, River Springs denied C.Q. a FAPE when it removed her from Prentice.

At Prentice, C.Q. had made two years of progress in less than one year. [ER 283.]

Her prior placement demonstrated no such progress. Id. Educational Psychologist


32
Dr. Passaro agreed that C.Q. suffered educational setbacks when River Springs

removed her from school. Id. River Springs did not obtain C.Q.’s parents’ consent

to place her at Flabob. [ER 69:16–20, 70:1–2.] To resolve this dispute, River Springs

could have filed for a due process hearing with the OAH. See 20 U.S.C. §

1415(j)(i)(2)(A) (creating right to bring civil action); 20 U.S.C. § 1414(a)(1)(D)(i)

(requiring parental consent to implement IEP). Instead, it pulled her from Prentice

and left her with no education at all. [ER 95, 126–152.] In doing so, River Springs

denied C.Q. a FAPE and thus violated the IDEA—and C.Q. will succeed in proving

that at the OAH. See 20 U.S.C. § 1400(c); 20 U.S.C. § 1415(a); W.G. v. Bd. of Tr. of

Target Range Sch. Dist., 960 F. 2d 1479 (9th Cir. 1992); Van Duyn v. Baker Sch.

Dist., 502 F. 3d 811 (9th Cir. 2007).

Second, C.Q. will likely succeed in challenging the Flabob placement because

Flabob cannot provide the services to which C.Q.’s IEP entitles her. Flabob is a

primarily a “home study” program targeted towards students who are interested in

pursuing aviation or engineering degrees.5 [See ER 120-21 at ¶¶ 12-15.] Flabob

primarily employs instructors that are current and former pilots. It specializes in

teaching ground school, robotics, engineering, rocketry, and office classes. Id.

Flabob only provides up to four days per week of core classroom instruction. [ER

5
See Springcharterschools.org/programs (Last Accessed May 13, 2018);
http://springscharterschools.org/programs/riverside/flabob-airportpreparatory-
academy
33
286.] Moreover, Flabob does not employ credentialed teachers; instead, it employs

“educational aides” who provide “hands-on classroom experiences” and supported

home-study activities. [ER 120-21 at ¶ 12.]

Dr. Passaro determined that Flabob’s program featured numerous deficiencies

that would prevent it from meeting C.Q.’s needs. For example, Flabob students

receive reading interventions that were exclusively administered by computer, and

that would not meet C.Q.’s literacy needs. [ER 119-20.] Moreover, C.Q. needs to

participate in a social group with age-matched peers with similar language levels to

practice learned skills in a natural setting. Cognitive Behavioral Therapy (“CBT”) is

the best vehicle to treat C.Q.’s anxiety, avoidance, and obsessions. [ER 121 at ¶ 15.]

Flabob does not provide CBT or any treatment in C.Q.’s area of need. Id. Likewise,

Flabob is not an NPS and therefore lacks the ability to provide the highly-structured

learning environment that C.Q. requires. The lack of credentialed teachers also

rendered Flabob inadequate. [ER 120-21 at ¶¶ 12-14.] As such, C.Q. has shown

serious questions on the merits of her underlying case.

2. The Equities Favor C.Q., Because Her Education Has Already


Suffered and Her Access to a FAPE Hangs in the Balance

C.Q.’s extensive challenges require that she receive education in a highly-

structured learning environment with intensive peer interaction, opportunities for

building social skills, and awareness, speech therapy, occupational therapy,

specialized academic instruction, and intensive supports and services. [See ER 102-
34
103, 117 at ¶¶ 5-6, 124 at ¶ 9 (describing C.Q.’s disabilities), 120-21 at ¶¶ 8, 13, 15.]

Prentice NPS provided these services to C.Q. Id. Specifically, Prentice offers

comprehensive support services such as a full-time psychologist, a team of speech

and language pathologists, an occupational therapy specialist, an educational

technology therapist, and a program specialist assigned to every child. Prentice has

“emphasis on multi-sensory instruction and our research-based structured literacy

approach to teaching reading and writing,” which is targeted to support deficits in

fluency, spelling, comprehension, vocabulary, and structure/organization of written

expression. Prentice features a small classroom size and direct, explicit, leveled

instruction, which helps students to build their skills and confidence. Id.

C.Q.’s treating Psychiatrist, Dr. Nelson, opined that C.Q. would suffer severe

academic, social, emotional, and behavioral regression upon removal from Prentice.

[ER 125 at ¶¶ 13-14.] Specifically, the psychiatrist indicated that C.Q. was finally

making progress in her current placement due to the nurturing, therapeutic

atmosphere, and she would not receive these benefits elsewhere. Id. at ¶¶ 7, 13-14.

In addition, Dr. Passaro testified:

I do not recommend moving C.Q. from Prentice at this


time. To move her would also likely result in a significant
regression in the social, emotional and behavioral progress
she has made at Prentice.

[ER 120-21 at ¶¶ 12-14, 18.]

35
River Springs unilaterally terminated funding for C.Q.’s tuition at Prentice on

March 23, 2018. [ER 95.] Prentice allowed C.Q. to continue her attendance after this

date, but her parents were ultimately forced to remove C.Q. from Prentice on April

19, 2018 due to a lack of funding. [See ER 294 at ¶13.] C.Q. was then without

education services of any kind—including her academic instruction, speech therapy,

occupational therapy, counseling, and socialization opportunities. [ER at 293-94 at

¶¶ 10-11, 13-14; see 122 at ¶¶ 21-23; 124-25 at ¶¶ 7, 13-14.] The sudden disruption

in C.Q.’s routine and isolation from her peers exacerbated her emotional condition,

and she is at risk of increased harm from her Depression, Social Phobia, Generalized

Anxiety Disorder, and Obsessive-Compulsive Disorders. [See ER 124-25 at ¶¶ 7-8,

11, 13; 121-22 at ¶¶ 14, 18, 20-23.]

Based on this evidence, the District Court found that “the several month

disruption in C.Q.’s education while the dispute is resolved qualifies as irreparable

harm.” [ER 38, fn. 1.] That finding cannot be disturbed absent clear error. See

Matthews, 362 F.3d at 1180. That hardship pushes the equities far towards C.Q.

River Springs faces no such hardship if a preliminary injunction ensues. It will

need only to provide funding for C.Q.’s placement at Prentice. The law already

places that obligation on River Springs, so River Springs cannot claim that this

changes the weight of the equities. Cf. Van Duyn v. Baker Sch. Dist., 502 F. 3d 811,

826 (9th Cir. 2007).

36
The equities favor C.Q. As such, C.Q. has satisfied the sliding scale analysis

and a preliminary injunction should issue.

B. For Many of the Same Reasons, C.Q. Satisfies the Winter


Preliminary Injunction Test

Under Winter, a plaintiff must show: (1) a likelihood of success on the merits;

(2) a likelihood of irreparable harm in the absence of injunctive relief; (3) that the

equities tip in her favor; and (4) that an injunction is in the public interest. Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

1. C.Q. Will Succeed on the Merits, Because River Springs Violated


the IDEA When It Unilaterally Removed Her from Prentice and
Flabob is Not an Appropriate Placement

As discussed in section IV(A)(1), C.Q. will likely succeed on the merits of her

due process case because: River Springs denied her a FAPE; the proposed Flabob

placement is not an NPS and therefore violates C.Q.’s operative IEP; and parents did

not consent to Flabob.

2. C.Q. Has Suffered and Will Continue to Suffer Irreparable Harm


Without Her Academic, Psychological, Social, Emotional, and
Behavioral Services

As discussed in section IV(A)(2), C.Q. presented evidence that she would and

did suffer irreparable harm if removed from Prentice NPS. The District Court found

such irreparable harm, and that finding cannot be disturbed absent clear error. See

Matthews, 362 F.3d at 1180.

37
3. The Equities Favor C.Q. Because River Springs Need Only to
Maintain the Status Quo to Curb the Palpable Harm C.Q. Has
Suffered and Will Suffer

As discussed in section IV(A)(2), the equities favor C.Q. because she faces

severe educational disruption in the absence of a preliminary injunction, whereas

River Springs faces only the obligation to pay for her education (i.e., provide her a

FAPE).

4. Public Policy Favors Keeping C.Q. In School

Like all students with disabilities, C.Q. is entitled to continuous access to a

FAPE. 20 U.S.C. § 1401(9); 34 C.F.R. §§ 300.17, 300.101, 300.112. Stay Put’s

policy is to preserve that access. 20 U.S.C. § 1415(j); Joshua A, 559 F.3d at 1039

(“It is unlikely that Congress intended [the] protective [Stay Put] measure to end

suddenly and arbitrarily before the dispute is fully resolved.”). The United States

Supreme Court agrees: “[Stay Put] is unequivocal in its mandate that ‘the child shall

remain in the then current educational placement’ and demonstrates a congressional

intent to strip schools of the unilateral authority they had traditionally employed to

exclude disabled students, particularly emotionally disturbed students, from school.”

Honig, 484 U.S. at 306. Policy is on C.Q.’s side.

C.Q. has satisfied both preliminary injunction tests. As such, the District

Court’s order must be affirmed regardless of whether this Panel applies Johnson or

Joshua A.

38
V. CONCLUSION

This case exemplifies the exact educational disruption which Stay Put seeks

to prevent. The IDEA cannot tolerate an approach that would so explicitly denigrate

its purpose. As such, this Panel must hold that the automatic injunction standard

applies to this case and affirm the District Court’s order granting C.Q.’s request for

Stay Put at Prentice NPS. In the alternative, it must rule that C.Q. satisfied both

preliminary injunction tests and affirm the District Court’s order on that ground.

Dated: October 12, 2018 NICHOLAS & TOMASEVIC, LLP

By:
David G. Greco

[additional counsel appear on


following page]

POWERS GREWAL, PLC


Punam P. Grewal
Michelle B. Powers

Attorneys for Plaintiff-Appellee

39