A.D. v. State of Hawaii Department of Education , 727 F.3d 911 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A.D., by and through his parent No. 12-17610
L.D., guardian ad litem,
Plaintiff-Appellee, D.C. No.
1:12-CV-00307-
v. JMS-KSC
STATE OF HAWAII DEPARTMENT OF
EDUCATION, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted
June 12, 2013—Honolulu, Hawaii
Filed August 14, 2013
Before: Jerome Farris, Dorothy W. Nelson,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge D.W. Nelson
2 A.D. V. STATE OF HAWAII DEP’T OF EDUC.
SUMMARY*
Individuals with Disabilities Education Act
The panel affirmed the district court’s order that a student
was entitled to remain in his special-education placement
pending resolution of his challenge under the Individuals with
Disabilities Education Act to “Act 163,” a Hawaii law cutting
off special-education eligibility for students who reach
age 20.
The panel held that the district court’s “stay put” order
was a collateral order subject to interlocutory appeal. The
panel held that even though the student had turned 22, the age
at which the IDEA cuts off special-education eligibility for all
disabled children, the appeal was not moot because the issue
of the availability of the stay-put injunction to students
challenging Act 163 was capable of repetition, yet evading
review.
The panel held that the IDEA’s stay-put provision
applied, even though the student had exceeded the state-
imposed limit on eligibility for public education, because
when he filed his complaint he was still fully eligible for
public special education under Hawaii law. The panel
distinguished a Seventh Circuit case, which held that the stay-
put provision ceased to function after a student reached the
IDEA’s statutory age limit by turning 22, on the basis that the
Hawaiian student was challenging the legality of the Act 163
deadline itself.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
A.D. V. STATE OF HAWAII DEP’T OF EDUC. 3
COUNSEL
David M. Louie, Attorney General, Gary S. Suganuma
(argued) and Holly T. Shikada, Deputy Attorneys General,
Honolulu, Hawaii, for Defendant-Appellant.
John P. Dellera, Honolulu, Hawaii, for Plaintiff-Appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
When a student with an existing special education
placement files a complaint under the Individuals with
Disabilities Education Act (“IDEA”), he is entitled to remain
in that placement until his case is resolved. 20 U.S.C.
§ 1415(j). In the argot of education law, this rule is known as
“stay put.” In this appeal, we must decide whether the stay-
put provision applies to a student who has exceeded a state-
imposed age limit on eligibility for public education. We
conclude that it does, and affirm.
A. Background
This appeal is about the interaction between the IDEA’s
stay-put provision and a Hawaii statute restricting public
education to students under the age of 20.
By default, the IDEA entitles a disabled child to a free
public education until he turns 22. See id. § 1412(a)(1)(A).
But a state may cut off special-education eligibility to
students as young as 18, provided that general-education
students are subject to the same limit. Id. § 1412(a)(1)(B)(i).
4 A.D. V. STATE OF HAWAII DEP’T OF EDUC.
Hawaii sought to impose such a limit in 2010, when the state
legislature passed “Act 163.” See Haw. Sess. L. 2010, ch.
163, § 1. Act 163 provides that “[n]o person who is twenty
years of age or over on the first instructional day of the school
year shall be eligible to attend a public school.” Haw. Rev.
Stat. § 302A-1134(c). A Hawaiian student who turns 20 after
the first day of school, however, remains eligible for public
education until the end of the “full school year.” Id.
A.D. is a severely disabled student in Hawaii. He has
attended a private school called Loveland Academy at public
expense since he was seven. Shortly after A.D. turned 20 in
May 2011, the Hawaii Department of Education (“DOE”)
issued a formal notice that, pursuant to the terms of Act 163,
A.D.’s special education placement would end on July 31,
2011, the last day of the 2010–2011 school year.
On June 20, 2011, A.D. challenged the termination of his
services by filing a request for an administrative due process
hearing. A.D.’s administrative complaint alleged that Act 163
violated federal law and that he was therefore entitled to
remain at Loveland Academy until age 22.1 Despite A.D.’s
request for a due process hearing, the DOE stopped paying
A.D.’s Loveland Academy tuition after July 31, 2011.
On January 9, 2012, A.D. moved for stay put—that is, he
asked the administrative hearing officer to declare that
1
A.D. was also a plaintiff in a class-action challenge to Act 163, which
resulted in the district court entering judgment in favor of the DOE. See
R.P.-K ex rel C.K. v. Dep’t of Educ., State of Haw., No. 10-00436, 2012
WL 1082250 (D. Haw. Mar. 30, 2012). In the administrative proceeding
out of which this appeal arises, A.D. argued that he was not bound by the
judgment in R.P.-K, which is currently on appeal to this court.
A.D. V. STATE OF HAWAII DEP’T OF EDUC. 5
Loveland Academy was his stay-put placement and that the
DOE was obligated to pay his tuition until A.D.’s challenge
to Act 163 ran its course. A.D. also moved for summary
judgment. At the same time, the DOE moved to dismiss
A.D.’s administrative complaint.
The hearing officer denied A.D.’s motion for stay put and
granted the DOE’s motion to dismiss. A.D. appealed both
orders to federal district court. The district court reversed the
hearing officer’s denial of A.D.’s motion for stay put, holding
that “[s]tay put . . . should have entered when [A.D.] filed his
Request for Due Process Hearing on June 20, 2011 . . . .”
A.D. ex rel. L.D. v. Dep’t of Educ., State of Haw., No. 12-
00307, 2012 WL 5292865, at *8 (D. Haw. Oct. 25, 2012).
The DOE appealed, raising the single issue whether A.D.
was entitled to remain at Loveland Academy as his stay-put
placement during the pendency of his challenge to Act 163.
B. Analysis
Before we turn to that question, we address two
preliminaries. First, our circuit has never conclusively
resolved whether a stay-put order is a collateral order subject
to interlocutory appeal. We agree with a recent unpublished
decision of our circuit holding that a stay-put order is
appealable under the collateral order doctrine, because it
“conclusively determines the disputed question of the child’s
stay-put location, resolves an important issue completely
separate from the merits of the child’s ultimate placement,
and is effectively unreviewable on appeal from a final
judgment.” Marcus I. ex rel. Karen I. v. Dep’t of Educ.,
506 F. App’x 613, 614 (9th Cir. 2013) (citing Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
6 A.D. V. STATE OF HAWAII DEP’T OF EDUC.
Second, A.D. argues that this appeal became moot when
he turned 22 in May of this year. A.D. points out that the sole
object of his challenge to Act 163 was to secure educational
services until he reached the IDEA’s default eligibility limit
of 22. A.D. is correct that the controversy is dormant now that
he has exited the special education system. But the issue of
whether the stay-put injunction is available to students
challenging Act 163 is capable of repetition, yet evading
review. See Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d
1281, 1287 (9th Cir. 2013) (to fall under this exception “(1)
the duration of the challenged action or injury must be too
short to be fully litigated, and (2) there must be a reasonable
likelihood that the same party will be subject to the action
again”). Because Act 163 may pretermit special education
placements in the future, it is reasonable to expect that the
DOE will face more challenges to the law. And every
20-year-old challenger to Act 163 will age out of special
education within two years. The litigation window might
never stay open long enough to resolve whether such students
are entitled to stay-put injunctions, and the DOE is reasonably
likely to face these challenges again. This appeal is therefore
not moot. See id.And now to the merits. The IDEA’s stay-put provision
states that, “during the pendency of any proceedings
conducted pursuant to this section . . . the child shall remain
in the then-current educational placement of the child . . . .”
20 U.S.C. § 1415(j). Stay put “functions as an ‘automatic’
preliminary injunction” in IDEA cases by prohibiting changes
to a student’s educational placement until the legal dispute is
resolved. Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d
1036, 1037 (9th Cir. 2009). Because the injunction is
automatic, a student who requests an administrative due
process hearing is entitled to remain in his educational
A.D. V. STATE OF HAWAII DEP’T OF EDUC. 7
placement regardless of the strength of his case or the
likelihood he will be harmed by a change in placement. See
id.Stay put routinely functions just as it did in A.D.’s case:
a school district attempts to change a student’s placement, the
student objects to the change by filing an administrative
complaint, and stay put maintains the placement until the
dispute ends. See, e.g., Honig v. Doe, 484 U.S. 305, 312,
323–24 (1988) (holding that students were entitled to stay put
during the pendency of their legal challenge to the school
district’s effort to expel them for disruptive conduct).
However, the DOE argues that this case is different because
Act 163 is a bar to eligibility for public education. Because
A.D. was 20 when he invoked his right to stay put, the DOE
argues, he had aged out of public education in Hawaii under
the terms of Act 163. And, the argument goes, a student who
is no longer eligible for services under the IDEA has no right
to invoke stay put (or any other of the IDEA’s procedural
protections).
The DOE’s argument elides a crucial detail: at the time
A.D. filed his due process complaint on June 20, 2011, he
was still fully eligible for public special education under
Hawaii law. Act 163 does not render students ineligible for
public education on the day they turn 20. Rather, a student
who “reaches twenty years of age after the first instructional
day of the school year”—as A.D. did—remains “eligible to
attend public school for the full school year.” Haw. Rev. Stat.
§ 302A-1134(c). The DOE’s own briefs concede that A.D.
remained eligible for special education until the end of the
2010–2011 school year on July 31, 2011. Because A.D. was
eligible under the IDEA when he commenced his
administrative challenge to Act 163, he was fully entitled to
8 A.D. V. STATE OF HAWAII DEP’T OF EDUC.
an automatic injunction preserving his placement at Loveland
Academy during the pendency of the dispute. See Anchorage
Sch. Dist. v. M.P., 689 F.3d 1047, 1055 (9th Cir. 2012). And
that automatic injunction should have held in abeyance any
changes to his educational placement, whether the result of
Act 163 or some other cause. Id.It is irrelevant that A.D. did not formally move for stay
put until January 2012, after the end of the 2010–2011 school
year. A stay-put motion can be a useful instrument to clarify
a student’s rights and a school district’s responsibilities under
the stay-put provision once litigation is underway. Because
stay put is “automatic,” however, a stay-put placement is
effective from the date a student requests an administrative
due process hearing. See K.D. ex rel. C.L. v. Dep’t of Educ.,
State of Haw., 665 F.3d 1110, 1117 (9th Cir. 2011) (“[T]he
stay put provision does not apply unless and until a request
for a due process hearing is filed.” (emphasis added)); see
also D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d
488, 492 (3d Cir. 2012) (“By filing the [due process] petition,
A.C. triggered the IDEA’s ‘stay-put’ requirement.”); Webster
Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1373
(8th Cir. 1990). A.D.’s stay-put placement at Loveland
Academy became effective when he filed his administrative
complaint on June 20, 2011—on which date he was fully
eligible for special education under both state and federal law.
Perhaps the DOE is arguing that, even if A.D. was
entitled to invoke stay put at the time he filed his complaint,
his right to stay put ended at the moment he crossed Act
163’s eligibility threshold. Some courts have held that the
stay-put provision ceases to function after a student reaches
the IDEA’s statutory age limit by turning 22. See Bd. of Educ.
of Oak Park & River Forest High Sch. Dist. 200 v. Ill. State
A.D. V. STATE OF HAWAII DEP’T OF EDUC. 9
Bd. of Educ., 79 F.3d 654 (7th Cir. 1996). In Oak Park, the
Seventh Circuit considered the case of a student who was
weeks away from reaching the IDEA’s statutory age limit
when he filed a complaint seeking an additional year of
compensatory education. Id. at 656. The student argued that
the stay-put provision entitled him to remain in his placement
indefinitely, even after he reached the IDEA’s statutory
eligibility limit. The court rejected his argument, explaining
that stay put ends once a student is no longer IDEA-eligible:
[T]he entitlements created by the Individuals
with Disabilities Education Act expire when
the disabled individual turns 212. . . . Once the
child reaches the age at which he no longer is
entitled to the protection of the Act, the
stay-put provision, which is intended to
prevent the child from losing benefits to
which he is entitled, loses its rationale. Its
continued application would confer benefits
beyond the limit set by Congress.
Id. at 659–60. If the same logic applies to the Act 163 age
limit, A.D.’s right to stay put evaporated along with his
eligibility for public education on the last day of the
2010–2011 school year.
The difference is that unlike the plaintiff in Oak Park,
A.D. is challenging the legality of the deadline that ostensibly
2
In the 1990s, courts in several circuits, including our own, held that
IDEA eligibility terminated on a student’s 21st birthday. See, e.g., Parents
of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir.
1994). Today, federal regulations make clear that IDEA eligibility extends
to 21-year-olds. See 34 C.F.R. § 300.102(a)(1).
10 A.D. V. STATE OF HAWAII DEP’T OF EDUC.
governs his IDEA eligibility. In Oak Park, the student did not
dispute that he had “reache[d] the age at which he no longer
is entitled to the protection of the Act . . . .” Id. at 660. Here,
though, that is the very essence of the dispute. Whether A.D.
was “entitled to the protection of the Act” after July 31, 2011
depends on the lawfulness of Act 163. The DOE invites us to
prejudge the merits of A.D.’s case by accepting the premise
that Act 163 strips A.D. of his procedural rights under the
IDEA. Accepting that premise would subvert the purpose of
the stay-put provision, which is to protect students from
changes to their educational programs when there is a dispute
over the lawfulness of the changes. See Joshua A., 559 F.3d
at 1040.
A decision in the DOE’s favor would be an open
invitation to school districts or legislatures to declare students
ineligible for IDEA services as a means of stripping students
of their rights under the stay-put provision. The DOE’s
argument is that if a state law or policy renders a student
ineligible for IDEA services, the student cannot invoke stay
put even in a challenge to that specific eligibility criterion.
Thus, on the DOE’s view, a state could adopt a law declaring
students with particularly costly disabilities ineligible for
special education, and students affected by the law would
have no right to stay put while they contested their eligibility.
Section 1415(j) is unequivocal: it states that a student
“shall” remain in his educational placement during the
pendency of his case. While it is reasonable to think that the
age limit Congress incorporated into the IDEA itself
implicitly delimits the stay-put provision, see Oak Park,
79 F.3d at 660, there is no reason to think that the same is true
of states’ or school districts’ idiosyncratic eligibility criteria.
When a dispute exists about whether a special education
A.D. V. STATE OF HAWAII DEP’T OF EDUC. 11
eligibility criterion is lawful or whether it applies to a
particular student, stay put preserves the student’s eligibility
until the dispute is resolved. Cf. R.Y. v. Hawaii, No. 09-
00242, 2010 WL 558552, at *7 (D. Haw. Feb. 17, 2010)
(“[B]ecause Plaintiffs are appealing whether Student is
entitled to a regular high school diploma, Defendant’s
issuance of a diploma to Student did not extinguish Student’s
stay put rights under the IDEA.”).
In short, this is not a case in which A.D. concedes he has
aged out of special-education eligibility but is seeking to use
the stay-put mechanism to acquire services for which he is
actually ineligible. Until his challenge to Act 163 is resolved,
stay put enjoins the state from invoking the Act to alter his
placement.
Conclusion
The district court correctly granted A.D.’s motion for stay
put. A.D. was entitled to remain at Loveland Academy as his
stay-put placement from the date he filed his administrative
complaint, and he was entitled to remain there until his case
was finally resolved.
AFFIRMED.