Mr. and Ms. Doe v. Portland Public Schools ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1589
MR. AND MRS. DOE, individually and as parents and next friends
of JOHN DOE, a minor,
Plaintiffs, Appellees,
v.
PORTLAND PUBLIC SCHOOLS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Lynch, Thompson, and Gelpí,
Circuit Judges.
Eric R. Herlan, with whom Drummond Woodsum & MacMahon
were on brief, for appellant.
Richard L. O'Meara, with whom Murray, Plumb & Murray
were on brief, for appellees.
Selene Almazan-Altobelli and Ellen Saideman on brief for
Council of Parent Attorneys and Advocates, Inc., amicus curiae.
March 29, 2022
LYNCH, Circuit Judge. Portland Public Schools
("Portland") appeals from the entry of an order from the district
court issued under the stay-put provision of the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(j), as
implemented by 34 C.F.R. § 300.518 and judicial opinions. The
court order required Portland to pay for John Doe's tuition for
the duration of this litigation at Aucocisco School ("Aucocisco"),
where Doe's parents unilaterally placed him in February 2020. Doe
v. Portland Pub. Schs., No. 20-cv-00461, 2021 WL 3056372, at *1
(D. Me. July 20, 2021). The district court found that an
administrative hearing officer's reimbursement order constituted
agreement between the state and the parents that a change of
placement to Aucocisco is appropriate. Id. at *4. The court did
so despite the fact that the hearing officer whose decision was
being reviewed by the court had determined that the individualized
education plan ("IEP") issued by Portland in January 2020 would
provide a free appropriate public education ("FAPE").
Portland in fact paid for Doe's tuition for the new
placement at Aucocisco for the spring and fall semesters of 2020,
as the hearing officer required. This was merely an equitable
remedy the hearing officer ordered to remedy Portland's denial of
a FAPE to Doe from December 2017 to November 2019. The hearing
officer separately concluded that Portland provided Doe with an
IEP which met the requirements of a FAPE as of January 2020.
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Portland appeals from the district court ordering it to pay for
Doe's placement at the private school during the pendency of these
proceedings.
We assert jurisdiction and reverse.1
I.
We recite the facts relevant to this interlocutory
appeal. When Doe was in the second grade at East End Community
School ("EECS"), his parents referred him for evaluation as a
potential special education student in September 2017. The IEP
team met in December 2017 and concluded that he was not eligible
for special education services.
At the end of Doe's third-grade year, in May 2019, his
parents once again referred him for special education evaluation.
The IEP team administered evaluations in the fall of 2019 and
concluded in November 2019 that he was eligible for special
education services. On January 24, 2020, the IEP team proposed an
IEP to the Does which would have allowed for Doe's placement at
any of Portland's public elementary schools.
Meanwhile, in May 2019, Doe's parents began taking him
to tutoring at Aucocisco, a private school serving students with
disabilities, which continued through that summer. In fall 2019,
Doe's fourth-grade year, his parents unilaterally placed him at
1 We thank amicus curiae Council of Parent Attorneys and
Advocates, Inc. for their helpful brief.
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another Portland private school, the Breakwater School, and also
engaged a private tutor for him. Then in February 2020, they moved
him to Aucocisco, the school that he continues to attend today.
The Does also engaged Dr. Marcia Hunter to conduct a
neuropsychological examination of Doe during several visits over
a period of several months spanning November 2019 to March 2020.
On November 6, 2019, while Doe was enrolled at the
Breakwater School, the Does filed for a due process hearing with
the Maine Department of Education, alleging that Portland violated
the IDEA by finding him ineligible for special education services
between December 2017 and November 2019. They also challenged the
January 2020 IEP Portland had offered. After a four-day hearing,
the hearing officer concluded that Doe had been denied a FAPE
between December 2017 and November 2019. The hearing officer
ordered Portland to reimburse the Does $74,613.35, which covered
the costs of his tutoring and summer programming at Aucocisco in
summer 2019, the private tutor they engaged in fall 2019 when he
was at the Breakwater School, classes at Aucocisco in spring and
summer of 2020, Dr. Hunter's evaluation, and the fall 2020 semester
at Aucocisco. The hearing officer found, however, that the January
2020 IEP offered Doe a FAPE, and did not order continuing placement
for Doe at Aucocisco.
In order to reach her conclusions regarding
reimbursement and the appropriateness of the proffered IEP, the
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hearing officer conducted two separate analyses. She noted that
a unilateral private school placement is proper for reimbursement
if it provides "'some element of the special education services'
missing from the public alternative . . . ." Mr. I. ex rel. L.I.
v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 25 (1st Cir. 2007)
(quoting Berger v. Medina City Sch. Dist., 348 F.3d 513, 523 (6th
Cir. 2003)). She concluded that "[t]he tutoring and programming
provided by Aucocisco, as well as the tutoring provided while [Doe]
was enrolled at Breakwater, easily satisfy the standard . . . by
providing some element of the missing special education services."
In contrast, in determining that the January 2020 IEP
was appropriate, the hearing officer applied a more rigorous
standard. She noted that the IDEA "requires an educational program
reasonably calculated to enable a child to make progress
appropriate in light of the child's circumstances," Endrew F. ex
rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988,
1001 (2017), and it also requires that the child be placed in the
least restrictive environment possible, 20 U.S.C. § 1412(a)(5)(A).
After analyzing the IEP, the hearing officer concluded that "the
program and placement in the IEP issued by [Portland] in January
2020 was reasonably calculated to enable [Doe] to make progress
appropriate in light of his circumstances while allowing his
education with peers to the maximum extent appropriate . . . ."
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After the hearing officer's decision came down, the Does
filed a complaint in federal district court in Maine on December
9, 2020 seeking damages and attorneys' fees and challenging the
portion of the hearing officer's decision approving the January
2020 IEP. On March 5, 2021, they filed a motion to enforce
placement at Aucocisco under the IDEA's stay-put provision.
Following a hearing, the district court granted the motion on July
20, 2021, ordering Portland to pay for Doe's continued placement
at Aucocisco during the pendency of these judicial proceedings.
Portland now appeals that determination.
II.
As a matter of first impression in this circuit, we find
that jurisdiction over this interlocutory appeal is proper under
the collateral order doctrine. See Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949) (noting interlocutory review
appropriate where a decision will "finally determine claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of
the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated."). Four circuits
have already concluded that there is interlocutory jurisdiction
and we agree. See A.D. ex rel. L.D. v. Haw. Dep't of Educ., 727
F.3d 911, 913 (9th Cir. 2013); St. Tammany Par. Sch. Bd. v.
Louisiana, 142 F.3d 776, 781–82 (5th Cir. 1998); Bd. of Educ. v.
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Ill. State Bd. of Educ., 79 F.3d 654, 657–58 (7th Cir. 1996);
Susquenita Sch. Dist. v. Raelee S. ex rel. Heidi S., 96 F.3d 78,
81 n.4 (3d Cir. 1996). Both parties agree in this case that
jurisdiction is appropriate.
Stay-put orders are appealable under the collateral
order doctrine because the appeal conclusively determines the
issue of the student's placement during litigation, it resolves an
important issue which is independent from the merits of the
student's ultimate placement, and a stay-put order is effectively
unreviewable after final judgment. See A.D. ex rel. L.D., 727
F.3d at 913.
III.
We review the district court's determinations of legal
issues de novo, and findings of fact are reviewed for clear error.
Johnson v. Bos. Pub. Schs., 906 F.3d 182, 191 (1st Cir. 2018).
"Where the case raises mixed questions of law and fact, we employ
a 'degree-of-deference continuum,' providing 'non-deferential
plenary review for law-dominated questions' and 'deferential
review for fact-dominated questions.'" Id. (quoting Doe v. Cape
Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st Cir. 2016)). The issue
in this case -- whether the hearing officer's determination
constituted "agreement" between the state and the parents that
Aucocisco was Doe's appropriate placement -- is a purely legal
one, so our review is de novo.
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A.
Section 1415 of the IDEA, 20 U.S.C. § 1400 et seq.,
outlines procedural safeguards for state and local school
districts receiving federal assistance for education of children
with disabilities to ensure the provision of a FAPE to those
children. See Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 3
(1st Cir. 1999).
Section 1415(j) requires that "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 . . . ." Commonly referred to as the stay-put
provision, this provision "is designed to preserve the status quo
pending resolution of challenge proceedings under the IDEA."
Verhoeven, 207 F.3d at 3. "The preservation of the status quo
ensures that the student remains in the last placement that the
parents and the educational authority agreed to be appropriate."
Id. at 10.
Determining the last agreed-upon placement is more
complicated when parents unilaterally decide to place their child
at a private school without the school district's approval. An
administrative decision in favor of a unilateral change of
placement to private school by parents can constitute "agreement"
by the state to that placement for purposes of the stay-put
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provision. See Sch. Comm. of Burlington v. Dep't of Educ. 471
U.S. 359, 372 (1985); see also 34 C.F.R. § 300.518(d) ("If the
hearing officer in a due process hearing conducted by the SEA or
a State review official in an administrative appeal agrees with
the child's parents that a change of placement is appropriate,
that placement must be treated as an agreement between the State
and the parents . . . .").
Here, the hearing officer determined that the family's
actions taken between May 2019 and December 2020 (which included
placing Doe at Aucocisco but also included other private tutoring
and Dr. Hunter's evaluation) should be reimbursed because they
were taken to remedy education deficits caused by Portland's denial
of a FAPE to Doe from December 2017 to November 2019.
In the same decision, the hearing officer addressed a
separate issue and expressly found that Portland's January 2020
IEP provided a FAPE under the IDEA. The hearing officer did not
order ongoing placement at Aucocisco as of the time that she
approved the January 2020 IEP.
Section 1415(j)'s plain language contemplates children
remaining in their "then-current educational placement" during
IDEA proceedings. Doe was at Breakwater School when his parents
initiated the IDEA proceedings. However, under Burlington and
§ 300.518(d), a hearing officer's decision that parents'
unilateral change of placement is appropriate can constitute
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"agreement" between the state and parents for the purposes of the
stay-put provision. On the facts here, those regulatory and case
law requirements are not met. Further, the hearing officer did
not ever determine that placement at Aucocisco was appropriate.
Doe argues that, because the hearing officer ordered
repayment of the fall tuition at Aucocisco for a semester which
continued until January (after the date of the decision), the
hearing officer was actually ordering a continuing remedy. This
misconstrues the hearing officer's decision, which was clear that
reimbursement was being ordered for a denial of a FAPE between
2017 and 2019, and which expressly stated that "ongoing placement
of [Doe] at Aucocisco is not ordered."2
Portland argues that the use of the present tense in
§ 300.518(d) as to whether a "change of placement is appropriate"
is determinative in this case, because the hearing officer did not
order ongoing placement at Aucocisco, merely reimbursement as a
remedy for a past denial of FAPE. Doe argues that when
reimbursement is ordered, there is agreement between the state and
the parents that a change of placement is appropriate.
On the facts and the hearing officer's decision here,
the regulation does not bear the construction Doe and the district
2 The hearing officer's decision specified that annual
tuition at Aucocisco is $45,675, but the Does had thus far paid
$25,121.25 towards the first semester, which was the amount being
reimbursed.
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court give it. The hearing officer approved the January 2020 IEP
as providing a FAPE. She did not find that continuing unilateral
placement by the parents at Aucocisco "is appropriate" so as to
constitute agreement.3 The regulation speaks of a present change
of placement, not a remedial order expressly limited to a fixed
period in the past. The hearing officer determined that the
equities supported reimbursement to the parents for a prior denial
of FAPE, but, on these facts, the hearing officer did not approve
a change of placement for Doe.
B.
The district court order also errs in treating two
separate provisions of the IDEA, § 1412(a)(10)(C)(ii), which deals
with reimbursement for private education when a student is denied
a FAPE, and § 1412(a)(1)(A), which requires states to make a FAPE
available to children with disabilities, as one. In addition to
the requirement that school districts provide a FAPE, the IDEA
provides that when parents unilaterally place a child with a
disability in private school "a court or a hearing officer may
require the agency to reimburse the parents for the cost of that
3 The dissent characterizes our decision as "effectively
approv[ing] the state's unilateral decision to change [Doe]'s
placement to public school." However, it was the parents who
unilaterally placed Doe at Aucocisco, and the case law is clear
that "parents who unilaterally change their child's placement
during the pendency of review proceedings, without the consent of
state or local school officials" bear the risk that the change of
placement will not be approved. Burlington, 471 U.S. at 373–74.
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enrollment if the court or hearing officer finds that the agency
had not made a [FAPE] available to the child in a timely manner
prior to that enrollment." 20 U.S.C. § 1412(a)(10)(c)(ii); see
also Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir. 2006).
This reimbursement is a form of equitable relief. Díaz-Fonseca,
451 F.3d at 31. The private school need not meet all of the IDEA's
requirements for a FAPE in order for parents to be reimbursed for
a placement. See Florence Cnty. Sch. Dist. Four v. Carter ex rel.
Carter, 510 U.S. 7, 13 (1993). "The question of whether a
unilateral placement is 'proper' [for reimbursement purposes] is
'viewed more favorably to the parent' than the question of whether
'the placement was required in order to provide a free appropriate
public education . . . .'" York Sch. Dep't v. S.Z. ex rel. P.Z.,
No. 13-CV-00042, 2015 WL 860953, at *17 (D. Me. Feb. 27, 2015)
(quoting Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 n.5 (1st Cir.
2001)).
The two separate analyses as to two separate issues that
the hearing officer performed, in determining whether
reimbursement was warranted and whether the January 2020 IEP was
suitable, support our conclusion. The hearing officer determined
that the Does should be reimbursed for costs they sustained to
remedy the denial of a FAPE from December 2017 to November 2019,
and stated she did so because placement at Aucocisco and private
tutoring provided "some element of the missing special education
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services." The hearing officer then determined that the January
2020 IEP met the more rigorous IDEA standard of being reasonably
calculated to enable Doe to make progress in light of his specific
circumstance, see Endrew F., 137 S. Ct. at 1001, and placed him in
the least restrictive environment practicable, see 20 U.S.C. §
1412(a)(5)(A). Her application of these two different standards,
as well as her finding that "ongoing placement . . . at Aucocisco
is not ordered," demonstrate that she was not approving a change
of placement.4
The IDEA's "elaborate administrative scheme" "places
those with specialized knowledge -- education professionals -- at
the center of the decisionmaking process" before parents can bring
suit in state or federal court. Frazier v. Fairhaven Sch. Comm.,
276 F.3d 52, 60 (1st Cir. 2002) (first quoting N.B. ex rel. D.G.
v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1378 (1st Cir. 1996)).
"[T]he provision of judicial review is 'by no means an invitation
to the courts to substitute their own notions of sound educational
policy for those of the school authorities which they review.'"
Id. at 61 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206
(1982)). Here, the hearing officer has clearly made the holdings
4 In noting the separate analyses, we do not imply that a
least restrictive environment finding is necessary in order for a
hearing officer to determine that a unilateral change of placement
to private school is appropriate. Our decision is limited to the
facts of this case, where a current IEP was approved concurrently
with the reimbursement order.
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we have described. Under the IDEA, federal judges are not free to
substitute their own views as to what the IDEA requires be provided
to the child. "Judges are not education professionals and
generally do not have the knowledge and expertise that hearing
officers in IDEA cases have." Valentín-Marrero ex rel. GAJVM v.
Puerto Rico, Nos. 20-2054, 20-2112, 2022 WL 872218, at *5 (1st
Cir. Mar. 24, 2022). The hearing officer clearly held that she
did not agree with the parents' unilateral change of Doe's
placement to Aucocisco; indeed, she never found that the placement
at Aucocisco offered a FAPE and, to the contrary, found that as of
January 2020, Portland offered an appropriate IEP which provided
a FAPE. It is Congress's determination that the child is best
served in a setting where he receives a FAPE. See 20 U.S.C.
1412(a)(1)(A).
C.
The case most heavily relied on by the district court,
Sudbury Public Schools v. Massachusetts Department of Elementary
& Secondary Education, 762 F. Supp. 2d 254 (D. Mass. 2010), is
distinguishable. There, the hearing officer made no findings
regarding prospective relief, but the district court found that
reimbursement for a private placement in the past year, where the
school's proposed IEP was not appropriate, was an agreement for
purposes of the stay-put order. Id. at 268-69. This case is quite
different from the one at hand, however, because the hearing
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officer did not approve the IEP and made no prospective
determination whatsoever in Sudbury.5
Affirming the district court decision would mean that
even when school districts take actions to come into compliance
with the IDEA and provide students with a new IEP providing a FAPE,
as happened in this case, any past denial of a FAPE (before the
school district supplies an IEP providing a FAPE) that the hearing
officer determines should be reimbursed as an equitable matter
will have far-reaching consequences. This would put the school
district on the hook for placement at a private school for the
pendency of litigation. IDEA litigation can be years long and, in
that time, private school tuition can run in the hundreds of
thousands of dollars. Wallkill, where a hearing officer found
that a unilateral private placement was appropriate for one year
but not the two subsequent years, demonstrates the potential
5 Nor is our finding inconsistent with A.W. ex rel. B.W. v.
Board of Education of Wallkill Central School District, No. 14-
CV-1583, 2015 WL 3397936 (N.D.N.Y. May 26, 2015). In Wallkill,
the administrative hearing officer found that the parents'
unilateral placement was appropriate for one year, but
inappropriate for the two subsequent years, and ordered
reimbursement for only the first year. Id. at *2. The district
court then declined to find agreement for the purposes of the stay-
put order on the basis of that one year, reasoning that the
administrative decision should be read comprehensively and that it
would be unfair to "allow a party to cling to a discrete portion
of a comprehensive decision to achieve their preferred outcome
while discarding the more significant portion of that same decision
which concurrently rendered a completely, overarching different
result . . . ." Id. at *5. Similarly, it would be unfair here to
ignore the entirety of the hearing officer's findings.
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pitfalls of this approach. 2015 WL 3397936, at *2. Not only does
the plain language of § 1415(j) and § 300.518(d) foreclose such a
reading, but such an outcome is contrary to the IDEA's purposes.
The IDEA was "enacted . . . to ensure that disabled
children could receive an appropriate education free of cost."
Doe v. Bos. Pub. Sch., 358 F.3d 20, 23 (1st Cir. 2004). It also
"manifests a preference for mainstreaming disabled children."
C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 285
(1st Cir. 2008). Here, Portland has offered an IEP which the
hearing officer found would provide Doe with a FAPE and which gave
the Does the option of placing him at any of the district's public
elementary schools. Portland has been ordered to reimburse the
family for actions taken to remedy Portland's past denial of a
FAPE. The purposes of the IDEA are not served by having Portland
continue to pay for Doe's tuition at Aucocisco.
IV.
We reverse the district court's grant of Doe's motion to
enforce placement. No costs are awarded.
-Dissenting Opinion Follows-
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THOMPSON, Circuit Judge, dissenting. This interlocutory
appeal presents us with a specific and narrow issue to resolve:
Pursuant to the Individuals with Disabilities Education Act's
(IDEA) stay put provision, 20 U.S.C. § 1415(j), whether John Doe
is properly placed at the private Aucocisco School during the
adjudication of the Does' claims against Portland Public Schools.
The answer, in my view, is a resounding yes. What will become
clear in the analysis set forth below is that my view of the record
in this case and the applicable statute is diametrically opposed
to the majority's view.
My colleagues in the majority have covered the
background in this case, but here are the vital pieces that propel
my take on the issue before us: In October 2020, the hearing
officer presiding over the Does' due process hearing concluded
that Portland Public Schools had failed to provide John Doe with
a free and appropriate public education (FAPE) (as required by the
IDEA) from December 2017 through November 2019. To remedy this
wrong, the hearing officer ordered Portland Public Schools to
reimburse the Does for expenditures they had made on their own
initiative for John's education from May 2019 through December
2020. See Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359,
370 (1985) (stating retroactive reimbursement to parents for
school tuition is an available and proper remedy for denial of a
FAPE). The reimbursement order -- approximately $74,600 --
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included the Does' expenditures for tutoring and summer
programming at Aucocisco beginning in May 2019, private tutoring
during fall 2019, tuition at Aucocisco for spring, summer, and
fall 2020, an evaluation to assess an orthographic processing
disorder, plus some transportation costs. The hearing officer
found that "[t]he tutoring and programming provided by Aucocisco,
as well as the tutoring provided while [John] was enrolled at
Breakwater, easily satisf[ied] the standard of being proper under
the Act by providing some element of the missing special education
services." (Internal quotation omitted). In the same order, the
hearing officer also concluded that the IEP Portland Public Schools
proposed to the Does in January 2020 (which would place John in
one of Portland's public schools with a portion of each day spent
in one-on-one instruction for reading, writing, and math as well
as other supports built into the week) "was reasonably calculated
to enable [John] to make progress appropriate in light of his
circumstances and thus offered him a [FAPE]. . . . Because an
appropriate IEP was offered in January 2020, ongoing placement of
[John] at Aucocisco is not ordered."
The Does' complaint filed with the district court
appeals the hearing officer's conclusion about the proposed IEP,
requests recovery of the attorneys' fees and expenses throughout
the due process administrative proceeding pursuant to
§ 1415(i)(3)(B), and claims Portland intentionally discriminated
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against them when it denied John special educational services6 in
violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794. Neither party in this litigation has challenged the scope
or the amount of the reimbursement the hearing officer ordered.
While those four claims have been percolating, the Does
asked the district court to enforce placement for John at Aucocisco
for the duration of the judicial proceedings.7 As we already know,
the district court granted the motion and Portland Public Schools
sought an interlocutory appeal hoping to overturn the district
court's decision. All we are called upon to decide at the moment
is where the stay put provision, applied to the record before us,
places John while the parties litigate the Does' claims.
The IDEA's stay put provision directs that, "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." 20 U.S.C. § 1415(j). The
6 The Does allege that the Portland school psychologist who
initially evaluated John showed disability-based animus towards
him because she admitted at the due process hearing that she is
"biased" towards keeping students in a regular education setting
to watch for improvement.
7 The docket for the underlying case shows Portland Public
Schools moved for summary judgment on the Does' two discrimination
claims and that this motion is still pending before the district
court.
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IDEA does not define "then-current educational placement," but the
implementing regulation provides an important piece of guidance:
"If the hearing officer in a due process hearing . . . agrees with
the child's parents that a change of placement is appropriate,
that placement must be treated as an agreement between the State
and the parents for purposes of [the stay put provision]." 34
C.F.R. § 300.518. This court has previously noted that "the
interim placement during proceedings challenging the child's
regular placement shall be the child's current educational
placement, 'unless the . . . educational agency and the parents
otherwise agree.'" Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1,
7-8 (1st Cir. 1999) (quoting § 1415(j)). And, importantly, this
court has repeatedly emphasized that the stay put provision "is
designed to preserve the status quo pending resolution of
administrative and judicial proceedings under the [IDEA]. The
preservation of the status quo ensures that the student remains in
the last placement that the parents and the educational authority
agreed to be appropriate." Verhoeven, 207 F.3d at 10 (quotation
and citation omitted); see Doe v. Brookline Sch. Comm., 722 F.2d
910, 915 (1st Cir. 1983). All of this means that, when we are
asked to determine the stay put placement, we are looking back for
the last time the parents and the state agreed on a placement.
The district court granted the parents' Motion to
Enforce Maintenance of Placement at Aucocisco because it concluded
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"Aucocisco was the last placement that both the Does and the State
agreed to [and] that Aucocisco is John's proper placement for
purposes of the stay put provision of the IDEA. . . . Portland is
therefore required to fund John's education at Aucocisco
throughout these judicial proceedings." In my view, the district
court hit the nail on the head.
The way I see it, the application of the statutory
language to the hearing officer's decision leads to the inescapable
conclusion that John should remain at Aucocisco during the pendency
of his litigation against Portland Public Schools. Here's why.
The statutory framework indicates the stay put placement is the
last location the parents and state agreed on. The record is
crystal clear that the parents want John placed at Aucocisco and
have not agreed to a change of placement back to Portland's public
schools. As for the state's point of view, 34 C.F.R. § 300.518(d)
tells us that when the hearing officer presiding over a due process
hearing agrees with the parents that a change of placement is
appropriate -- as the hearing officer did when she stamped her
seal of approval on the parents' unilateral decision to move John
to Aucocisco when the state wouldn't step up and address John's
needs -- this placement "must be treated as an agreement between
the state and the parents for purposes of" stay put. (Emphasis
mine.) In addition, to order reimbursement for a unilateral
private school placement, the hearing officer must first determine
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that the school district violated the student's right to a FAPE
and that the private school placement chosen by the parents is
appropriate under the IDEA. 20 U.S.C. § 1412(a)(10)(C)(ii)
(allowing reimbursement if the hearing officer finds the public
agency denied the student a FAPE); Florence County Sch. Dist. Four
v. Carter, 510 U.S. 7, 15 (1993) (stating parents "are entitled to
reimbursement only if [the presiding officer] concludes both that
the public placement violated the IDEA and that the private school
placement was proper under the Act"). The hearing officer
acknowledged these two requirements before she ordered the
reimbursement to the Does, then explicitly concluded she found
Portland denied John a FAPE and that the "tutoring and programming
provided by Aucocisco . . . easily satisf[ied] the standard of
being proper under the Act by providing some element of the missing
special education services." (Internal quotation omitted). The
hearing officer then itemized the expenses to be reimbursed, which
included the Does' tuition expenses at Aucocisco covering the 2020
calendar year. So it's clear to me that the last place the parties
agreed was the right place for John was Aucocisco, and Aucocisco
is therefore not a change of placement but the statutory stay put
placement for John while the district court adjudicates the Does'
claims.
The hearing officer's closing sentence in her order --
"[b]ecause an appropriate IEP was offered in January 2020, ongoing
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placement of [John] at Aucocisco is not ordered" -- does not change
the outcome of the analysis. Her thumb on the scale for John's
future placement is not an agreement between the state and parents
for a change of placement because the parents clearly didn't agree
with the public school + one-on-one extras, as demonstrated by
their appeal of this conclusion to the district court. And I think
it's worth repeating that the district court has yet to resolve
this issue. Because the hearing officer's conclusion is not an
agreement between the state and the parents for a change in
placement, I once again land back at the last time the parents and
state did agree -- which was when the hearing officer concluded
that the parents' unilateral placement of John at Aucocisco was
okay. See Verhoeven, 207 F.3d at 7-8 ("The interim placement
during proceedings challenging the child's regular placement shall
be the child's current educational placement, 'unless the . . .
educational agency and the parents otherwise agree.'") (quoting
§ 1415(j)); 34 C.F.R. § 300.518(d).
I acknowledge that this last sentence of her order --
when she stated she was not ordering continuing placement at
Aucocisco -- could be read as a confusing internal discrepancy
because she okayed both the reimbursement of Aucocisco tuition
expended for fall 2020 and the proposed IEP in which Portland would
have placed John at a public school for the same time period. This
last sentence could be a reflection of her conclusion that the IEP
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offered met the statutory standard, meaning that although the Does'
unilateral decision to place John at Aucocisco was fine and they
were entitled to reimbursement for the tuition they had paid in
2020, John would have a change of placement coming up after that.
Regardless, this conclusion does not reflect an agreement between
the parents and the state because the parents didn't agree with
Portland Public Schools or the hearing officer on this point.
Moreover, and at the risk of sounding like a broken record, the
issue before us is not about John's ultimate proper placement; it
is about where he should be educated while his parents challenge
the hearing officer's conclusion about the propriety of the
proposed IEP in addition to their other claims.
My conclusion is also consistent with the stay put
policy's central objective: to provide stability for the child
during the pending of judicial proceedings by preserving the status
quo. See Verhoeven, 207 F.3d at 10; Brookline Sch. Comm., 722
F.2d at 915. The majority's holding -- which effectively approves
the state's unilateral decision to change John's placement to
public school -- violates this policy because it will force John
back to a school he hasn't attended in almost three years. And he
may be heading back there eventually, but at this point his parents
have not agreed to this placement and the stay put policy clearly
seeks to find the last place agreed to by both sides and to prevent
a student from ping ponging between schools while the parents fight
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for their child's rights to supplemental education services when,
as here, the child has been deemed eligible. The majority opinion
sets an unfortunate precedent, one that goes beyond the simple
application of the stay put provision to the record of this case
and dishonors the spirit of the stay put provision.
For the reasons I have explained, the application of the
stay put provision to the record of this case shows that John Doe's
proper and current placement is at Aucocisco. Accordingly, I
dissent.
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