regarding whether the no question asked automatic stay put the standard of joshua way or the traditional four factor analysis for injunctive relief set forth in johnson so i didn't quite get through the opening sentence as an initial matter yes it needs to be emphasized that the decision the court reaches in this case will not and cannot resolve any split in the districts regarding whether the application of the no question asked automatic stay put a set forth standard set forth in joshua a or the more traditional form factor through in johnson applies so yes you're saying the disparity in the district courts within the ninth circuit is that what you're talking yes there is no disparity the ninth circuit has set forth the book what was your reference to are you saying the district courts are interpret the cases the the i don't get your point student made it the student has argued that this court is in a position to resolve a split in the districts regarding whether the no questions asked to magic stay put applies or the traditional four factor test applies so you do you are aware that we are here reviewing a preliminary injunction which means that our review with extremely limited yes and in this case the district court applied the ninth circuit has made clear the distinction of when the two standards applies when the question is the invocation of stay put where when does stay put apply the automatic no questions asked to stay put standard set forth in joshua applies when the question is one that affects stay put regarding the services the program the location any of the factors that go into the placement the traditional four factors test for traditional injunctive relief under johnson applies you lost me ok there are two standards but the district court in this case applied at the no questions asked to magic stay put standard but it was applied in this case which is not requesting the invocation of stay case the student is requesting that her present nonpublic school be deemed the then current educational placement for purposes of stay put the district court interpreted that request as asking that stay put apply but there is no question in this case the stay put applies and say put means that when a student a special ed education student brings an action they are entitled to remain in their then current educational placement during the pendency of those proceedings like educational placement in your view is a term of art yes and in this case you're saying that they're what that was not the educational placement it was kind of a placeholder correct there is no question in this case the stay put applies stay put was put in place the day she filed her due process complaint before the office of administrative hearings and now you lost me it does make a difference oh ok in this case in this case what the student has asked for in her request for a temporary restraining like l j what did the what did the administrative officer decide the l j decided that the student's present nonpublic school was not stay put and why because there was a specific agreement between the parents in the river springs that it would be a and the district agree to a temporary placement it cannot be a stay put not necessarily no my argument for this case is that the district court judge made the affirmative decision on an ex party base as an application for temporary restraining order that that was not a temporary placement but that that was where the student was entitled to receive her education right but my question to you is you you made a point of telling us about the agreement between the parents yes and the school district that this would be a temporary placement is it your position that a temporary placement may a stay put and are certain circumstances it may be certainly ok if the if the parties had agreed that this was a stay put placement then that would have been the status of the placement is that correct yes it is cracked ok so is your argument that because the parties did not agree that this would be a stay put placement that the district court judge had no basis upon which to  decide that this was a stay put place partly yes let's the rest of your the district court judge should have before making that determination should have applied the traditional four factor test set forth in johnson to determine whether the student discretion and then applied the four factor winter test injunction and found that the student was not likely to succeed and judge graber for our court accepted correct that's the standard we should be applying is your claim right that is my claim thank you i'm sorry that that was not clear in this case the district court judge  what kind of consideration he gave them and while the district court judge is certainly entitled to himself determine how much do what is due consideration not entitle to ignore it altogether secondly the failure to apply the four factors in this particular case resulted in awarding the absent exact affirmative relief that the plaintiff is requesting in the p r l and in her first cause of action for declaratory relief and her second cause of action for injunctive relief and this was done on an ex parte basis on an automatic no questions asked standard without river springs do not have the opportunity to present it to test the allegations the factual and procedural allegations in the complaint or to present evidence of its own this is an ex parte hearing and the judge awarded the very affirmative relief that her first cause of action for declaratory relief and her second cause of action for injunctive relief and which is the exact same relief you saw before the l j three times in which the day denied three times so the in that decision the trial court makes an affirmative finding that the student is in an educational institution that it here to the terms of the i p that is a substantial of finding and again made on a no questions asked automatic as an adjunct finding to the automatic no question asked stay put and should have been made upon proper motion and certainly upon consideration of the four factors when he was an automatic c put correct when a student is asking for the imposition of stay put for example when  the question does stay put apply to a student who has aged out of the system does stay put apply to a student who has graduated with a full diploma is stay put dissolved when the appeal is dismissed as you're trying to make the question does stay put applied can easily be answered yes or no does it apply in this particular circumstance yes or no in our case and where the four factors apply the question is of the four factors apply in your case and not the automatic stay put in your case because the student in this case there's no question the stay put was put into place i used the word invoked and i know that you've been hearing that all morning in the criminal context but because stay put was was put in place the day she filed her due process complaint before the o age the question and the only dispute in this case is what is stay put what is the current educational placement what was the last implemented i e those are not yes or no questions and in every case in which the automatic no questions asked state is applied it's very simple does stay put apply in this particular situation yes or no we don't argue we don't nobody disputes that stay put applies in the situation student is in this case what is stay put what is the good and that's the distinguishing difference between the no question asked the automatic stay put of joshua a and the traditional form factor test should have been the last implemented i before that temporary placement and that was the river springs home school program this should judge never considered that as an alternative and by law and under the facts they make a state put ruling that's correct and student did not ask for stay put ruling the student only asked if they all day to determine that her present nonpublic school was stay put and the ale day said no that's not stay put and then she brought you know three times tried to clarify it but she never asked what islay push she could of and said of was obligated to ask what is stay put and for the district  asked as well the district was responding to students request my question was could the district have asked the l g to resolve that issue as well i suppose theoretically the district  to clarify the court's initial concern what is stay put stay put is an automatic injunction that applies across any and every dispute when a student disputes the adequacy of their special at a later date if the parties agree that the printer's placement would not be a state no and the reason they did not agree that your honor is on the record here the district court found that the parties had not agreed to the provision in the i e that states that prentiss is not offering or river springs was not offering prentiss as a stay put placement there is nothing in the i e p that indicates that the parties springs does not offer prentice as a stay put placement it is vegan as to whether the parties agreed to that provision of the contract and the truck court made a factual finding and that they did not minister of law judge what we do with that well good at the printers was not a stay put place that will lead me actually into the reason that this carve out provision is i think an enforceable in entirety the zero ages order resulted in the exact harm that stay put seeks to prevent the oh age did not bother to place c q anywhere and that was the only other option aside from placing c can address each of those separately all finish addressing the carve out provision first the card out provision as i said before it was never accepted by c q s parents according to the district court and river springs bears the obligation to show that that finding was clearly erroneous pretty pretty damning evidence well the language of that provision is a vegan and so the court made a finding about whether that language was part of the contract and this court is bound by that factual find on lessons clearly are among those then i will say the other decision or the other reason that the oh h placed c q nowhere and pulled her out of school the exact harm that stay put is designed to prevent with on these two out of circuit cases both of those cases are distinguishable both of those cases had specific deadlines on which the current placement would end it was a time it was a multi stage i e p just like the ninth circuit case that we have i believe it's an easy where a multi stage i e p was validated and found that the later placement provided any deference to the a l j because he did not have to a stay put order is an order that is subject to appeal and on appeal so it was an appeal from the o h to the district court the standard of review remains the same it remains the automatic injunction there is no obligation in fourteen fifteen jay or any of the case law ninth circuit binding case law to provide deference to an age is finding particularly but in this you have to it least read the decision to determine whether or not the decision is entitle says regardless of the issue whether or not that means straight of decision is final to some so erroneous taking c q out of school was not entitled to any deference and in fact that decision illustrates the fault in this carve out provision the fault in the carve out provision was that there was nowhere the value to of the district court to go through the injunction analysis the injunction analysis applies only when a preexisting adequate stay put order has already preexisting stay put order your honors was adequate in this case in c q s case there was no placement and so there was no adequate order to go beyond the same in strewing  right well iran or the algaes decision cannot be construed as adequate she had no placement it can't be seen under the goals of the i d e a for a student to be properly placed when she's not in school at all that is the  disenrolled the child from school times well to they had to write it wasn't a parental choice this wasn't a unilateral removal by the parents by any means under the idea of a parent very no obligation to pay for their students education so even if and this is not in the record but even if he cues parents could afford to privately place for apprentice they have no obligation to do so well they have no obligation if that's been determined to be the state put school but it wasn't in this case at that time the a l j had determined that it was not the state put school so as of that time the parents the school district was not obligated to pay for print at that point and the appeal and so c q was removed from prentice and the appeal to the district arrowroot were reversed that and placed her back at princess and the important thing to note here and this is clear actually in the reply brief often river springs says the future placement was to be determined so therefore there was a future placement alternatively they conceded that the o h did not identify a placement and then elsewhere at school district identified a place the school district had not identified a placement they they claimed it was  the administrative law judge then the school district was prepared to offer the placement that the parents were not willing to accept right which makes it a non placement because placement requires parental consent under the i d e a no i e p can be administered or finalized without consent of the parents so the full blob offer it has nothing no bearing on what c q is placement yes i would like to return quickly to the point i was making in that elsewhere in the brings purports that c q placement is homeschool so it's actually not clear even to reverse springs where c q would go if she didn't go to practice because they say three different things in their brief and the fact is the policy behind to stay put is to maintain the status quo to ensure that a child is not treated as a ping pong ball ricocheting between placements with each new  there's any dispute about where her placement is then the tie the ambiguity it goes to c q the idea was written for students not for school districts and that quote that i just gave you is  the notion that the district court's finding was an affirmative issuance of relief beyond that available in stay put that argument cannot have any merit because did also want to point out that the concept of multi stage i e which is what we believe river springs should have applied if they wish to create a truly temporary placement it has then validated by the ninth circuit in any resist seattle eight forty two f third ten ninety three for some reason at page thirteen of rivers brings brief they write the concept of i e p stages used if they wanted to create a truly temporary placement that would fit this case into the mold of leonard and for who even as well this case doesn't fit that mold because there was never a subsequent permanent agreed to placement the multiple different versions of what river springs claims could be a placement are not tenable given the district court's factual findings the language of the only  is revoked so there was never any consent for homeschool placement i will say one last thing about the carve out provision if a parent is deemed to have waived the right to stay put purely by the district inserting a clause into the notes saying we are not offering this program for these circumstances then effectively any student any district could circumvent the statute and worse a student into a unilateral replacement if the student asserted their rights discouraging the student from asserting their rights and with that notice a district court would have had to and did perform some pretty substantial linguistic contortions to find that the parents find it the apprentice placement was not temporary the language is clear it's temporary and it would be an extraordinary misunderstanding would it be better to characterize it as indefinite it had a definite no it had a definite placement it did well belatedly determination it had a definite terminated i'm sorry it did in what way the first semester of the two thousand and seventeen two thousand eight hundred school year done and the reason that that particular temporary placement came about was because the parties could not agree on a placement i didn't indicate in the plan that it would be reviewed not to didn't say terminate it we're going to review it it can be read and that is how the district court read it but the placement that temporary placement came about after months and months of the parties being unable to come to any agreement the student says that we must have had a multi stage value that's simply not true and in this particular case it was not possible because there was no agreement this was a temporary placement to keep to satisfy the parents fairly for a temporary period of time while they continue to try to come to terms on  permanent placement so what's there to come to terms with the parents on a permanent placement now ok so what was the what were the parents to do if you didn't come to terms with them what was the placement the pla revert back as a matter of law and under the facts of this case it revert back to the last implemented i which was the home springs or the river springs home school placement the the way student is characterize is generally true except and unless the parties otherwise agree and in this particular case the parties did otherwise agree very clearly forth what is your response to opposing counsel's contention that the parents did not agree they signed it but the terms were not clear to them i can only say that would be an extraordinary misunderstanding in the light of the clear and simple language thank you thank you thank you to both