Velma Olu-Cole v. E.L. Haynes Public Charter Sc ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2018 Decided July 19, 2019
No. 18-7028
VELMA OLU-COLE, PARENT AND NEXT FRIEND OF M.K.,
APPELLANT
v.
E.L. HAYNES PUBLIC CHARTER SCHOOL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00238)
Stevie Nabors argued the cause and filed the briefs for
appellant.
Lauren E. Baum argued the cause and filed the brief for
appellee.
Before: ROGERS and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: The Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et seq., creates a
powerful statutory presumption in favor of maintaining the
2
current classroom placement of a student with a disability when
the school seeks to change his placement over a parent’s
objections. 20 U.S.C. § 1415(j). That presumption is
commonly known as the “stay put” requirement. When a
child with a disability has been suspended from school, stay put
heavily favors promptly returning the child to the classroom.
See id. § 1415(k). As an adjunct to stay put, the statute also
entitles students with disabilities to “appropriate” remedies like
compensatory education to make up for any academic
shortfalls that occur during the time they are kept out of school.
See id. § 1415(i)(2)(C)(iii); Boose v. District of Columbia, 786
F.3d 1054, 1056 (D.C. Cir. 2015). The local educational
agency must overcome a heavy evidentiary burden to displace
the default rule that the child will stay put.
The district court in this case wrongly denied a stay-put
injunction because it placed the burden of proof on the student
rather than the local educational agency. And that error has
continuing adverse consequences for the student’s claim for
compensatory education. For those reasons, we reverse and
remand for further proceedings consistent with this opinion.
I
The Individuals with Disabilities Education Act (“IDEA”)
offers federal funding to States, the District of Columbia, and
other United States territories on the condition that they
provide children with disabilities a “free appropriate public
education” in the “least restrictive environment.” 20 U.S.C.
§ 1412(a)(1), (a)(5); 34 C.F.R. § 300.114–117; see generally
Fry v. Napoleon Community Sch., 137 S. Ct. 743, 748–749
(2017). One of the statute’s key goals is to integrate children
with and without disabilities “[t]o the maximum extent
appropriate.” 20 U.S.C. § 1412(a)(5)(A).
3
The “primary vehicle” for securing an appropriate public
education is the child’s “individualized education program,”
which is commonly referred to as an “IEP.” Honig v. Doe,
484 U.S. 305, 311 (1988); see 20 U.S.C. § 1414(d). The “IEP
Team”—which includes school officials, teachers, and
parents—crafts the educational plan aimed at “meet[ing] the
child’s needs” and “enabl[ing] the child to be involved in and
make progress in the general educational curriculum[.]” 20
U.S.C. § 1414 (d)(1)(A)(i)(II)(aa), (d)(1)(B). The statute
designates the “local educational agency” as an integral
member of the IEP Team. Id. § 1414(d)(1)(B)(iv); id.
§ 1401(19) (defining a local educational agency as “a public
board of education or other public authority legally constituted
* * * for either administrative control or direction of, or to
perform a service function for, public elementary schools or
secondary schools”). That local educational agency is
responsible for ensuring that the IEP Team both “reviews the
child’s IEP * * * to determine whether [his or her] annual goals
* * * are being achieved[,] and [also] revises the IEP as
appropriate to address” a lack of progress, the results of
updated evaluations or tests, and any “anticipated needs.” Id.
§ 1414(d)(4)(A). Certain public charter schools, including
E.L. Haynes Public Charter School (“School”), operate as their
own local educational agency for purposes of the IDEA. 34
C.F.R. §§ 300.209, 300.705(a).
It should come as no surprise that parents and school
officials sometimes disagree over a child’s placement or the
details of an IEP. The IDEA provides formal dispute-
resolution procedures to address those conflicts. To start,
parents or local educational agencies may file a “due process
complaint” to challenge the current IEP or its implementation.
See, e.g., 20 U.S.C. § 1415(b)(6), (c)(2). That filing triggers
a preliminary meeting between the parties, id.
4
§ 1415(f)(1)(B)(i), as well as the option of mediation, id.
§ 1415(e).
Where impasse persists, the case proceeds to an
administrative hearing—commonly referred to as a “due
process” hearing, 20 U.S.C. § 1415(f)(1)(A)—before a
“hearing officer” who is not “involved in the education or care
of the child,” id. § 1415(f)(3)(A). The substantive touchstone
for that proceeding is always “whether the child [has] received
a free appropriate public education.” Id. § 1415(f)(3)(E)(i).
In the District of Columbia, the Office of the State
Superintendent for Education is the entity that administers the
due process hearings. See D.C. Code Ann. § 38-2572.02.
At the end of that administrative process, any party still
aggrieved may bring a civil action in federal district court to
challenge the final administrative determination. 20 U.S.C.
§ 1415(i)(2)(A). Courts may “grant such relief as [they]
determine[] is appropriate” under the law. Id.
§ 1415(i)(2)(C)(iii).
Recognizing that this dispute-resolution process can take
time, and that parties will continue to disagree in the interim,
the IDEA’s “stay put” provision strikes the balance heavily in
favor of maintaining the educational status quo for students
with disabilities until proceedings have concluded. As
relevant here, the IDEA mandates:
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[.]
5
20 U.S.C. § 1415(j). To put it more simply, “all handicapped
children, regardless of whether their case is meritorious or not,
are to remain in their current educational placement until the
dispute with regard to their placement is ultimately resolved.”
Mackey v. Board of Educ. for Arlington Cent. Sch. Dist., 386
F.3d 158, 161 (2d Cir. 2004) (emphasis omitted) (quoting
Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir.
1996)).
The purpose of the stay-put command is to “strip schools
of the unilateral authority they * * * traditionally employed to
exclude disabled students * * * from school.” Honig, 484
U.S. at 323 (emphasis in original) (interpreting predecessor
provision codified at 20 U.S.C. § 1415(e)(3) (1988)). And
the Supreme Court has held that stay put applies “particularly
[to] emotionally disturbed students[.]” Id.
But the stay-put mandate is not without limits. The
provision carves out an express exception for proceedings
“provided [for] in subsection (k)(4),” which governs
disciplinary proceedings related to certain forms of student
misconduct. 20 U.S.C. § 1415(j); see id. § 1415(k)(4).
Subsection (k)—titled “Placement in alternative educational
setting”—gives schools limited authority to unilaterally
suspend students with disabilities for such misconduct. See
20 U.S.C. § 1415(k). When that happens, the statute
authorizes the school to place the student in an “appropriate
interim alternative educational setting, another setting, or
suspension, for not more than 10 school days (to the extent such
alternatives are applied to children without disabilities).” Id.
§ 1415(k)(1)(B). That placement decision is to be made on a
“case-by-case basis,” taking into account each child’s “unique
circumstances.” Id. § 1415(k)(1)(A).
 6
Within the statutorily prescribed ten-day window, the
school must determine whether the conduct was a
“manifestation of the child’s disability.” 20 U.S.C.
§ 1415(k)(1)(E)(ii). If it was, then the default rule is that the
child must be returned “to the placement from which [he or
she] was removed.” Id. § 1415(k)(1)(F)(iii); 34 C.F.R.
§ 300.530(f)(2). If, on the other hand, the misconduct was not
tied to the student’s disability, then the school can pursue the
same disciplinary procedures that “would be applied
to children without disabilities[.]” 20 U.S.C.
§ 1415(k)(1)(C).
Even for disability-related misconduct, the presumption
favoring return of the student to school gives way when the
misconduct involves weapons, drugs, or—as relevant here—
the infliction of “serious bodily injury upon another.” 20
U.S.C. § 1415(k)(1)(G); id. § 1415(k)(7) (incorporating 18
U.S.C. § 1365(h)(3)’s definition of “serious bodily injury”).
In those “special circumstances,” the IDEA authorizes the
school to “remove [the] student to an interim alternative
educational setting for not more than 45 school days.” Id.
§ 1415(k)(1)(G).
When misconduct covered by Section 1415(k) occurs,
parents may challenge either the “placement [or] manifestation
determination[s]” by requesting a due process hearing. 20
U.S.C. § 1415(k)(3)(A). Local educational agencies may do
the same if they “believe[] that maintaining the current
placement of the child is substantially likely to result in injury
to the child or to others[.]” Id.; see id. § 1415(f)(1)(A)
(hearing procedures apply equally to complaints “under
subsection (b)(6) or (k)”).
7
Whenever a parent or local educational agency pursues
that hearing process, Subsection (k)(4) displaces the general
stay-put requirement. 20 U.S.C. § 1415(j). Instead,
(A) the child shall remain in the interim
alternative educational setting pending the
decision of the hearing officer or until the
expiration of the time period provided for in
paragraph (1)(C) [which concerns procedures
for misconduct unrelated to a child’s disability,]
whichever occurs first, unless the parent and the
State or local educational agency agree
otherwise; and
(B) the State or local educational agency shall
arrange for an expedited hearing, which shall
occur within 20 school days of the date the
hearing is requested and shall result in a
determination within 10 school days after the
hearing.
Id. § 1415(k)(4).
In other words, the child can be required to remain in the
alternative interim setting until either (i) the hearing officer
decides the expedited appeal (within thirty days of when the
complaint is filed), or (ii) the suspension period that “would
[have] be[en] applied to children without disabilities” has
lapsed, 20 U.S.C. § 1415(k)(1)(C). For cases that involve
misconduct involving weapons, drugs, or the infliction of
serious bodily injury, the governing regulations cap the interim
placement at the 45-day suspension period. See 34 C.F.R.
§ 300.533 (explaining that “the child must remain in the
interim alternative educational setting pending the decision of
the hearing officer or until the expiration of the time period
specified in § 300.530(c) or (g), whichever occurs first”)
8
(emphasis added); 34 C.F.R. § 300.530(g) (permitting schools
to “remove a student to an interim alternative educational
setting for not more than 45 days” if the child “[h]as inflicted
serious bodily injury upon another person while at school”).
Upon the request of a local educational agency, the hearing
officer has the limited authority to extend the interim
placement by “not more than 45 school days if [she] determines
that maintaining the current placement * * * is substantially
likely to result in injury to the child or to others.” 20 U.S.C.
§ 1415(k)(3)(B)(ii)(II).
II
M.K. is a high-school student with a significant emotional
disability that qualifies him for a specialized education and
related services under the IDEA. On November 6, 2017,
M.K. assaulted another student at the School, knocking him to
the ground and punching him in the head repeatedly. That
student suffered a concussion. The School determined that
the behavior was “a manifestation of [M.K.’s] disability,” 20
U.S.C. § 1415(k)(1)(E), but still chose to suspend him for the
statutory maximum of 45 days, pursuant to § 1415(k)(1)(G).
During the suspension, M.K. received educational services in
an isolated setting.
On December 4, the School informed M.K.’s mother,
Velma Olu-Cole, that it would seek a recommendation from
the District of Columbia’s Office of the State Superintendent
for Education regarding whether M.K should be permanently
transferred to a different school. On January 11, 2018, the
Superintendent declined to recommend transfer.
On January 17, the School informed Olu-Cole that it
would initiate a due process hearing to determine whether a
permanent change in placement would be appropriate. The
9
School sought Olu-Cole’s consent to extend M.K.’s interim
placement during the hearing process, but she refused. Olu-
Cole explained that M.K. had previously been receiving more
than 98 percent of his instruction in a general educational
setting, and she worried he would struggle further if subjected
to continued education “in isolation” from his peers. J.A. 40.
On January 24, M.K. attempted to return to the School, but
he was refused readmission. The next day, the School
requested a due process hearing on whether (i) M.K. should be
transferred to a non-public, special-education day school; and
(ii) his interim placement could continue until that process was
completed, see 20 U.S.C. § 1415(k)(3)(B)(ii)(II). That
hearing was scheduled for February 26, 2018, with a decision
expected in early March, see generally id. § 1415(k)(4)(B).
Meanwhile, on January 31, 2018, M.K.’s suspension
reached the IDEA’s 45-day cap. The next day, Olu-Cole filed
a complaint and motions for a temporary restraining order and
a preliminary injunction to compel M.K.’s reinstatement under
the stay-put provision. 1 Her complaint asked the court to
declare a violation of stay put, to order the School to readmit
M.K., and to grant emergency injunctive and declaratory relief.
The memoranda in support of those motions also asked for an
accompanying award of “compensatory education for any
violations of stay put.” J.A. 31, 49.
The district court denied a temporary restraining order on
1
Olu-Cole sought to compel M.K.’s reinstatement under
Section 1415(j) and 34 C.F.R. § 300.518, but those provisions are
inapplicable because the School sought M.K.’s continued exclusion
pursuant to Section 1415(k)(3). In any event, the district court
correctly applied the operative provisions in Section 1415(k) and 34
C.F.R. § 300.533. See Olu-Cole v. E.L. Haynes Pub. Charter Sch.,
292 F. Supp. 3d 413, 418 (D.D.C. 2019).
10
February 2, and denied a preliminary injunction on February
23. Olu-Cole v. E.L. Haynes Pub. Charter Sch., 292 F. Supp.
3d 413, 421 (D.D.C. 2019). In its opinion denying the
preliminary injunction, the court found that Olu-Cole was
likely to succeed on the merits because she had met the
established two-part test for stay put by showing that
(i) proceedings under the IDEA were “pending,” and (ii) the
School sought a change in M.K.’s “then-current educational
placement.” Id. at 417–419. The district court nonetheless
denied the motion because the hearing officer was expected to
rule in two weeks, and Olu-Cole had not demonstrated that
M.K. was likely to suffer irreparable harm from extending the
suspension until the officer ruled. Id. at 420. The district
court also accepted the School’s argument that M.K.’s return
to school “would raise an unacceptably significant potential of
injury to other interested parties.” Id. Given the
“significant public interest in maintaining school safety[,]” the
district court denied the motion. Id.
As it turns out, the School failed to keep the district court
up to date on changes in its position. The day before the court
issued its decision, the School filed with the hearing officer a
motion to withdraw its administrative due process complaint
and notified Olu-Cole that it was ready to discuss M.K.’s
readmission. Unapprised of the School’s change of heart, the
district court denied M.K.’s entitlement to stay put because of
“school safety.” Olu-Cole, 292 F. Supp. 3d at 420.
Olu-Cole appealed the next business day. Within two
days, the School readmitted M.K., and the hearing officer
dismissed the School’s administrative complaint with
prejudice.
III
11
Ordinarily, the party seeking a preliminary injunction must
make a “clear showing” that she is likely to succeed on the
merits; she will suffer irreparable harm in the absence of
preliminary relief; the “balance of equities” tips in her favor;
and an injunction would serve the public interest. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 22 (2008);
accord Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir.
2014).
The IDEA’s stay-put provision turns that traditional
framework on its head. Section 1415(j) effectively provides
for an automatic statutory injunction upon a two-factor
showing that (i) an administrative due process proceeding is
“pend[ing],” and (ii) the local educational agency is attempting
to alter the student’s “then-current educational placement.”
20 U.S.C. § 1415(j); see Casey K. ex rel. Norman K. v. Saint
Anne Community High Sch. Dist. No. 302, 400 F.3d 508, 511
(7th Cir. 2005) (Posner, J.) (comparing stay-put injunction to
an automatic stay in a bankruptcy case); Wagner v. Board of
Educ. of Montgomery Cty., 335 F.3d 297, 301 (4th Cir. 2003)
(“automatic” injunction); John T. ex rel. Paul T. v. Delaware
Cty. Intermediate Unit, 318 F.3d 545, 556 (3d Cir. 2003)
(same); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d
Cir. 1996) (stay put “functions, in essence as an automatic
preliminary injunction”); Light v. Parkway C-2 Sch. Dist., 41
F.3d 1223, 1227 (8th Cir. 1994) (same).
Because the IDEA deems the exclusion from appropriate
public education itself to be a significant harm, once those two
statutory factors are established, the student need not otherwise
“show[] irreparable harm.” Andersen ex rel. Andersen v.
District of Columbia, 877 F.2d 1018, 1023 (D.C. Cir. 1989)
(discussing predecessor statute); accord Casey K., 400 F.3d at
511.
12
The Supreme Court has said, though, that stay put does not
completely displace the “equitable powers of district courts
such that they cannot, in appropriate cases, temporarily enjoin
a dangerous disabled child from attending school[,]” and that
courts may tailor the order to provide “appropriate” relief.
Honig, 484 U.S. at 327 (discussing 20 U.S.C.
§ 1415(i)(2)(C)(iii)’s identically worded antecedent).
Instead, stay put “effectively creates a presumption in favor of
the child’s current educational placement which school
officials can overcome only by showing that maintaining the
child in his or her current placement is substantially likely to
result in injury either to himself or herself, or to others.” Id.
at 328. That means it is the school, and not the parent, that
must invoke the court’s equitable power to jam the “automatic”
statutory trigger for injunctive relief. And so it is the school,
and not the parent, that bears the heavy burden of securing
preliminary relief. See id.; Winter, 555 U.S. at 22.
To be sure, as a formal matter, Olu-Cole, rather than the
School, was the one that filed a motion for preliminary
injunctive relief in this case. But, as Honig held, the IDEA
made the grant of that injunction virtually automatic once Olu-
Cole made the two-factor showing that a due process hearing
was pending and that the School sought to undo an existing
placement. After that, “school officials [could not] escape the
presumptive effect of the stay-put provision simply by
violating it and forcing parents to petition for relief.” Honig,
484 U.S. at 328 n.10. Instead, even though the parents are the
ones “seeking injunctive relief for a violation of [Section]
1415[(j)], the burden rests with the school district to
demonstrate that the educational status quo must be altered.”
Id.
Taking it down to brass tacks, once Olu-Cole’s motion for
a preliminary injunction demonstrated that the two statutorily
13
required factors were met, there was a paradigm shift. Stay
put locked in M.K.’s educational status quo, and the party that
needed injunctive relief was the School seeking to derail the
statute’s ordinary operation. See Board of Educ. of
Community High Sch. Dist. No. 218 v. Illinois State Bd. of
Educ., 103 F.3d 545, 548–550 (7th Cir. 1996) (motion for a
preliminary “injunction was an effort to maintain the status
quo, and thus within the purview of the stay-put provision”);
Drinker, 78 F.3d at 864 (treating preliminary injunction as a
vehicle to enforce “automatic” stay-put injunction); Joshua A.
v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1037 (9th Cir.
2009) (“A motion for stay put functions as an ‘automatic’
preliminary injunction, meaning that the moving party need not
show the traditionally required factors (e.g., irreparable harm)
in order to obtain preliminary relief.”) (citation omitted); cf.
Wagner, 335 F.3d at 302; Light, 41 F.3d at 1227; Doe v.
Brookline Sch. Comm., 722 F.2d 910, 917 (1st Cir. 1983).
This has long been the understanding of the district courts
in this circuit. See, e.g., Z.B. v. District of Columbia, 292 F.
Supp. 3d 300, 304 (D.D.C. 2018); G.B. v. District of Columbia,
78 F. Supp. 3d 109, 113 (D.D.C. 2015); Wimbish v. District of
Columbia, 153 F. Supp. 3d. 4, 10 (D.D.C. 2015); Eley v.
District of Columbia, 47 F. Supp. 3d 1, 19 (D.D.C. 2014);
D.K. ex rel. Klein v. District of Columbia, 962 F. Supp. 2d 227,
232 (D.D.C. 2013); District of Columbia v. Vinyard, 901 F.
Supp. 2d 77, 84 (D.D.C. 2012); Laster v. District of Columbia,
439 F. Supp. 2d 93, 98 (D.D.C. 2006); Saleh v. District of
Columbia, 660 F. Supp. 212, 214 (D.D.C. 1987). And we
agree. That is the framework the district court should have
applied in this case.
But it did not. Olu-Cole is unquestionably correct that the
district court erred in putting the burden of proof on her to
14
prove that M.K. would be irreparably harmed by a denial of the
stay-put injunction.
The district court began, as it should have, by asking the
narrow merits question whether M.K. had established stay
put’s two conditions precedent—that is, that due process
proceedings were then pending, and that the school was
attempting to deviate from M.K.’s “then-current” placement.
Olu-Cole, 292 F. Supp. 3d at 418–419. The district court
found those two conditions satisfied. So far, so good.
At that point, Olu-Cole was presumptively entitled to have
M.K. stay put while the School sought an order allowing it to
move him to a new location. And the burden shifted to the
School to meet the heavy burden of overcoming that
presumption. See Honig, 484 U.S. at 328; Wagner, 335 F.3d
at 302; Drinker, 78 F.3d at 864; Brookline Sch., 722 F.2d at
917.
That is where the district court veered off the tracks.
Instead of requiring the School to shoulder the difficult burden
of justifying its continued exclusion of M.K., the district court
put the burden on Olu-Cole to show that “M.K. would * * *
suffer irreparable harm if the injunction is not granted.” Olu-
Cole, 292 F. Supp. 3d at 420. That was straightforward legal
error.
The School does not seriously attempt to defend the
district court’s erroneous burden shifting. Instead, the School
tries to repackage the district court’s decision as just making
the right findings under the wrong prong. School Br. 38–41.
In finding that M.K.’s readmission posed an “unacceptably
significant potential of injury to other interested parties,” Olu-
Cole, 292 F. Supp. 3d at 420, the School argues, the district
court necessarily would have concluded that the School met its
15
task of demonstrating irreparable harm from M.K.’s
readmission. School Br. 41.
Not so. This court has said time and again that the degree
of proof required for “irreparable harm” is “high,” and that a
failure to surmount it provides “grounds for refusing to issue a
preliminary injunction, even if the other three factors entering
the calculus merit such relief.” Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006); cf.
Nken v. Holder, 556 U.S. 418, 434 (2009) (irreparable injury
and likelihood of success are the two “most critical” showings
required to obtain a stay). The injury “must be both certain
and great; it must be actual and not theoretical [and] * * * of
such imminence that there is a ‘clear and present’ need for
equitable relief.” Chaplaincy of Full Gospel Churches, 454
F.3d at 297 (quoting Wisconsin Gas Co. v. FERC, 758 F.2d
669, 674 (D.C. Cir. 1985) (per curiam)); Doe v. Mattis, 889
F.3d 745, 782 (D.C. Cir. 2018) (injury must be “certain,”
“great” and “actual”).
No comparable burden accompanies the public-interest
factors upon which the district court principally relied and in
which it housed its finding of “potential” harm. Olu-Cole, 292
F. Supp. 3d at 420. So, in concluding that M.K.’s return
“would raise an unacceptably significant potential of injury to
other interested parties,” id. (emphasis added), the district court
did not find that the harm was “certain,” “great” and “actual.”
Mattis, 889 F.3d at 782.
It also must be remembered that the stay-put provision
reflects Congress’s considered judgment that children with
disabilities are substantially harmed by and must be protected
against school policies of unilateral disruption and exclusion.
See Honig, 484 U.S. at 308; Joshua A., 559 F.3d at 1040.
That presumably is why the statutory stay-put scheme requires
16
no additional showing of harm by the individual student. Any
judicial decision to override that congressional judgment
would be both “extraordinary and drastic,” and should be
withheld “unless the [school]” carries its heavy burden “by a
clear showing” of irreparable harm. Mazurek v. Armstrong,
520 U.S. 968, 972 (1997) (quoting 11A Charles Alan Wright,
Arthur R. Miller, & Mary Kay Kane, Federal Practice and
Procedure § 2948 (2d ed. 1995)). The district court’s
inversion—flipping that heavy burden to the parent—
“dilute[d] th[at] statutory framework” and the robust
procedural protections it extends to children with disabilities.
See Board of Educ. of Community High Sch., 103 F.3d at 550.
That erroneous reordering of the burden of proof
necessarily constitutes an abuse of discretion. See Koon v.
United States, 518 U.S. 81, 100 (1996); accord Wagner, 335
F.3d at 301.
The problems with the School’s position do not stop there.
Its insistence that the denial of stay put can be sustained on the
ground that readmitting M.K. posed an unacceptably high
threat to the safety of the school community stands in glaring
tension with its own independent decision to readmit M.K.,
which was made prior to the district court’s ruling. Had the
court been apprised of this reversal in the School’s position, it
would seem untenable for it still to have found that M.K.’s
readmission was “substantially likely to result in injury” to the
school community. See Honig, 484 U.S. at 328 (emphasis
added). The School cannot evade the evidentiary weight of its
own real-world behavior just by failing to alert the district court
to it.
IV
17
The School separately argues that this appeal is moot as a
result of M.K.’s readmission, combined with the dismissal with
prejudice of the School’s administrative due process complaint.
That argument ignores that the wrongful denial of stay put not
only delayed M.K.’s return to school, but altered his
entitlement to compensatory educational services, a claim that
remains live in this case.
Mootness “ensures compliance with Article III’s case and
controversy requirement by ‘limit[ing] federal courts to
deciding actual, ongoing controversies.’” Aref v. Lynch, 833
F.3d 242, 250 (D.C. Cir. 2016) (alteration in original) (quoting
American Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir.
2011)). A plaintiff’s failure to satisfy that Article III
prerequisite deprives the federal court of jurisdiction to act in
the case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95
(1998).
Because this case involves a motion for preliminary
equitable relief, Article III requires that the parties retain “a
legally cognizable interest in the determination of whether the
preliminary injunction was properly denied.” See Animal
Legal Def. Fund v. Shalala, 53 F.3d 363, 366 (D.C. Cir. 1995);
accord Pulphus v. Ayers, 909 F.3d 1148, 1152 (D.C. Cir.
2018). That is, would reversal either “affect the parties’
rights” or “have a more-than-speculative chance of affecting
them in the future”? Aref, 833 F.3d at 250 (internal quotation
marks omitted) (quoting American Bar Ass’n, 636 F.3d at 645);
see Chafin v. Chafin, 568 U.S. 165, 172 (2013) (Mootness
obtains “only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.”) (citation
omitted).
This case is not moot because M.K. retains a “concrete
interest * * * in the outcome of the litigation,” and the district
18
court could still grant “effectual relief.” Chafin, 568 U.S. at
172. In holding that M.K. was not entitled to a stay-put
injunction, the district court’s order had the dual effect of both
(i) empowering the School to continue excluding M.K. from its
educational services, and (ii) limiting M.K.’s claim to
compensatory educational relief for the time of that extended
exclusion. Compensatory education is “education services
designed to make up for past deficiencies in a child’s program,”
Boose, 786 F.3d at 1056 (citation omitted), and to return a
student to the position he would have been in the absence of an
IDEA violation, B.D. v. District of Columbia, 817 F.3d 792,
798 (D.C. Cir. 2016).
By holding that M.K. was not entitled to stay put, the
district court foreclosed M.K.’s ability to obtain compensatory
education for the (post-suspension) period of his exclusion
from school. To put it simply, if M.K. was not legally entitled
to be in school, his claim that he was entitled to classroom-
equivalent compensatory educational services would fail as
well because there would be no predicate IDEA violation
warranting compensatory education. See B.D., 817 F.3d at
798. That is why Olu-Cole’s request for a stay-put injunction
sought not just M.K.’s physical reentry into the classroom, but
also the attendant eligibility for compensatory services for the
period for which he was wrongly excluded. Cf. M.R. v. Ridley
Sch. Dist., 868 F.3d 218, 229–230 (3d Cir. 2017) (Section
1415(j) “gives rise to two concomitant rights” to stay put and
to compensatory education) (emphasis added); Doe v. East
Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015) (“[W]hen
an educational agency has violated the stay-put provision,
compensatory education may—and generally should—be
awarded to make up for any appreciable difference between the
full value of stay-put services owed” and what was actually
provided.).
19
In short, because the injury alleged went beyond the
ongoing physical exclusion from school and included the
educational consequences of his delayed return, the School’s
belated decision to readmit M.K. did not fully cure his injury,
and the consequences of the denial of stay put continue.
It is true that, even if M.K. were not entitled to return to
school after 45 days, Olu-Cole might still win compensatory
education for any inadequacies in the alternative educational
placement where he remained. But that award would not
compensate M.K. for the effects of the School’s unlawful
exclusion. That is because determining what (if any)
compensatory education is due is a comparative question.
Compensatory education seeks to restore a student to where the
IDEA required the student to be and to “undo the * * *
affirmative harm” resulting from the particular IDEA violation.
B.D., 817 F.3d at 798; see Boose, 786 F.3d at 1056. If M.K.
was not eligible to return to school, then the sufficiency of his
educational services will be measured against the standard for
out-of-school education. If he were entitled to stay put, in-
school education becomes the comparative baseline. See
Olu-Cole’s Reply Br. 20.
So understood, the denial of a stay-put injunction vitiated
the alleged stay-put violation and, along with it, any attendant
right to compensatory education to make up for a wrongful
exclusion under the IDEA. And because Olu-Cole has
identified distinct and concrete consequences that continue to
run from the district court’s stay-put denial, the case is not
mooted just by M.K.’s readmission. See Chafin, 568 U.S. at
172; McBryde v. Committee to Review Circuit Council
Conduct & Disability Orders of Judicial Conference of U.S.,
264 F.3d 52, 57 (D.C. Cir. 2001) (no mootness where “injury
to reputation is alleged as a secondary effect of an otherwise
moot action,” if “tangible, concrete effect remain[s] * * *
20
susceptible to judicial correction”) (citation and quotation
marks omitted); cf. Spencer v. Kemna, 523 U.S. 1, 8 (1998)
(case or controversy would exist even after a conviction is set
aside if petitioner demonstrates that “concrete disadvantages
* * * were [actually] imposed as a matter of law”).
Here, M.K.’s compensatory education request is not
merely a “collateral consequence” of the underlying stay-put
dispute, Spencer, 523 U.S. at 8. It is part and parcel of it.
Which presumably is why Olu-Cole appended the request for
compensatory education to her motion for preliminary
injunctive relief. Oral Arg. Tr. at 16 (Olu-Cole’s attorney
explaining that stay put and compensatory education are
“inextricably intertwined”); see also M.R., 868 F.3d at 229–
230.2
Lastly, the School challenges the predicate assumption
that stay put applied at all in this case. In its view, 34 C.F.R.
§ 300.533—which limits the interim placement to the 45-day
period specified in § 300.530(g)—conflicts with the IDEA’s
2
On July 8, 2019, the School notified this Court that M.K. has
now graduated from high school. That does not affect our mootness
analysis because M.K. remains eligible for compensatory education.
See Parents of Student W. v. Puyallup Sch. Dist. No. 3, 31 F.3d 1489,
1496 (9th Cir. 1994) (reaching the merits of a compensatory
education award for student who graduated from high school); Pihl
v. Massachusetts Dep’t of Educ., 9 F.3d 184, 189 (1st Cir. 1993)
(“[A] student who was deprived of services to which he was entitled
under the IDEA has a right to a remedy, in the form of compensatory
education, regardless of his eligibility for current or future services
under the Act.”); Brett v. Goshen Community Sch. Corp., 161 F.
Supp. 2d 930, 943 (N.D. Ind. 2001) (same); cf. Zobrest v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 4 n.3 (1993) (graduation did not
moot parents’ reimbursement claim for the cost of a private
interpreter hired to help their son graduate).
21
express directive that the child “remain in the interim
alternative educational setting” until the hearing officer issues
her decision, 20 U.S.C. § 1415(k)(4). School Br. 19–20.
That position fails to read the statutory text as a whole.
First, Section 1415(k)(1)(G) explicitly limits a school’s
authority to “remove a student to an interim alternative
educational setting for not more than 45 school days.”
(emphasis added). If a school could wait until the 45th day to
request a hearing, it could exclude a child for up to 75 days, in
direct contravention of the “no more than 45 school days”
mandate, id. See 20 U.S.C. § 1415(k)(4)(A).
Second, Section 1415(k)(3)(B)(ii)(II) imposes a parallel
limitation, allowing hearing officers only to “order a change in
placement of a child with a disability to an appropriate interim
alternative educational setting for not more than 45 school
days.” (emphasis added). The challenged regulation reads the
statutory provisions together, consistent with the IDEA’s
expedited 30-day hearing schedule. See Olu-Cole, 292 F.
Supp. 3d at 419 n.2 (noting that Section 1415(k)(4)
“contemplates a decision within 30 school days, well within the
45 days provided by [§ 1415(k)(1)(G)]”).
*****
Because the district court materially erred in its legal
analysis of the stay-put motion and because the consequences
of that decision have continuing consequences for M.K.’s
claim for compensatory education, the judgment of the district
court is reversed, and the case is remanded for further
proceedings consistent with this opinion.
So ordered.