Anchorage School District v. M.G. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANCHORAGE SCHOOL DISTRICT, No. 18-35229
Appellant,
D.C. No. 3:17-cv-00157-SLG
v.
M.G.; et al., MEMORANDUM*
Appellees.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 15, 2018
Anchorage, Alaska
Before: HAWKINS, CHRISTEN, and OWENS, Circuit Judges.
Anchorage School District (“the School District”) appeals from the district
court’s “stay-put” order, which permits student M.G. to remain at the Perkins
School for the Blind (“Perkins”) pending resolution of his action against the
School District under the Individuals with Disabilities Education Act (“IDEA”).
As the parties are familiar with the facts, we do not recount them here. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction under 28 U.S.C. § 1291, see A.D. ex rel. L.D. v. Hawaii Dep’t of Educ.,
727 F.3d 911, 913–14 (9th Cir. 2013) (“[A] stay put order is appealable under the
collateral order doctrine[.]”), and we affirm.
The district court did not err in maintaining M.G.’s placement at Perkins
beyond February 18, 2018 through its stay-put order. Under the IDEA, M.G. is
entitled to remain in his “then-current educational placement” until his substantive
IDEA claim is resolved. 20 U.S.C. § 1415(j); see also 34 C.F.R. § 300.518(a).
Because the hearing officer’s decision confirmed that M.G.’s placement at Perkins
was appropriate, Perkins constitutes M.G.’s “current educational placement” for
purposes of 20 U.S.C. § 1415(j). See K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d
1110, 1118 (9th Cir. 2011); see also 34 C.F.R. § 300.518(d). The School District
is “required to maintain that placement pending the court review proceedings
pursuant to section 1415[,]” notwithstanding the funding timeline contemplated in
the hearing officer’s decision. Clovis Unified Sch. Dist. v. Cal. Office of Admin.
Hearings, 903 F.2d 635, 641 (9th Cir. 1990) (per curiam) (citing Sch. Comm. of
Burlington. v. Dep’t of Educ., 471 U.S. 359, 372–73 (1985)).
This case is not like N.E. ex rel. C.E. v. Seattle School District, 842 F.3d
1093 (9th Cir. 2016), where we considered the proper application of 20 U.S.C.
§ 1415(j)’s “then-current educational placement” provision to a “multi-stage IEP”
that approved placement at a private school, but then expressly required the student
2
to transition from private school to public school at the start of the new school
year. 842 F.3d at 1094, 1097. In N.E., the IEP provided concrete guidelines for
the second phase of the student’s education; here, no such guidelines exist for
M.G.’s schooling after February 18, 2018.
Without a stay-put order requiring the School District to pay for M.G.’s
placement at Perkins pending resolution of the IDEA litigation, M.G.’s parents
would be forced to choose between returning M.G. to public school after February
18, 2018—even though he still does not have a functional IEP establishing the
terms of his education there—and keeping M.G. at Perkins at immense personal
cost. “Congress sought to eliminate this dilemma through its enactment of
§ 1415(j).” Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir.
2009). The district court did not err in concluding that Perkins is M.G.’s “current
educational placement” for purposes of 20 U.S.C. § 1415(j).
AFFIRMED.
3