UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RAMONA SMITH, Plaintiff - Appellant,

v. CHEYENNE MOUNTAIN SCHOOL DISTRICT 12, Defendant - Appellee. No. 14-1467 (D.C. No. 1:14-CV -02651-PAB-CBS) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ Ramona Smith, mother of R.S., a ch ild with Autistic Spectrum Disorder, appeals the preliminary injunction en tered on her claims brought under the Individuals with Disabilities Educati on Act (IDEA), 20 U.S.C. §§ 1400-82. Although the district court granted her alternative re quest that R.S.’s school placement be at the Cheyenne Mountain Charter Academy (CMCA) under the stayput provision of the IDEA, she asserts that the court erred in denying her preferred

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 16, 2016
Elisabeth A. Shumaker Clerk of Court2 request that the defendant, Cheyenne Mount ain School District 12 (School District) pay for private-school placement for R.S. pending the conclusion of administrative proceedings. This court ab ated the appeal until the di strict-court proceedings had concluded. We take juri sdiction under 28 U.S.C. §§ 1291 (appeal from a final order) and 1292(a)(1) (appeal from the grant of a preliminary injunction). We affirm.
I. Background The facts forming the basis for the di strict court’s st ay-put order are undisputed. R.S. resides in the Falcon School District. In 2013, Ms. Smith enrolled him in kindergarten at CMCA, pursuant to Colorado’s school-choice law. CMCA is within the School District. Upon his enrollment at CMCA , the staff determined that the Individual Education Program (IEP) de veloped by the Falcon School District was inadequate, so in November 2013, a new IEP was agreed upon. That IEP was revised in May 2014 (May 2014 IEP), and listed CM CA as R.S.’s school of attendance. In July 2014, CMCA informed Ms. Smith and R.S.’s father that it would not readmit R.S. to CMCA for the 2014-2015 school year because it did not have adequate staff to carry out R.S.’s IEP. On July 16, 2014, R.S.’s parents filed a due-process complaint with the Colorado Department of Education, claiming the School District violated the IDEA. See Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Sch. , 565 F.3d 1232, 1236 (10th Cir. 2009) (citing 20 U.S.C. §§ 1415(b)(6), (g), & (i)(2); describing IDEA procedures to file a complaint and appeal an administrative decision). T hose proceedings were assigned case number EA 2014-0018. On August 8, 2014, an administrative law judge (ALJ) denied the3 request to enroll R.S. at CM CA because there had been an insufficient showing that R.S.’s home school district could not implem ent his IEP. On September 23, the ALJ issued a final decision. 1 On September 25, 2014, Ms. Smith file d the underlying federal action seeking a ruling under the stay-put provision of th e IDEA that the School District pay for private schooling for R.S. In the alternative, she request ed an order finding that CMCA was R.S.’s then-current placement , thereby mandating that CMCA fulfill R.S.’s IEP while the litigati on is pending. The district court issued a preliminary injunction requiring R.S. to be enrolled at CMCA and to remain enrolled there throughout any appeal from th e ALJ’s ruling or, if none, fo r 90 days from the date of the ALJ’s decision. The court denied Ms. Sm ith’s request for priv ate-school funding. Ms. Smith appeals, arguing that the district cour t should have granted her request that the School Distri ct be required to pay for pr ivate schooling for R.S. She asserts the district court e rred in determining that CMCA was R.S.’s then-current placement.
II. Discussion The IDEA “is a Spending Clause statute th at seeks to ensure that all children with disabilities have availa ble to them a free appropriate public education [FAPE].” Schaffer ex rel. Schaffer v. Weast , 546 U.S. 49, 51 (2005) (citation and internal quotation marks omitted). Th e act requires school districts to “create an . . . IEP for

1 Ms. Smith has appealed the administra tive decision to the district court. See Smith v. Cheyenne Mountain Sch. Dist. , No. 14-cv-03390.4 each disabled child.” Id. (citing 20 U.S.C. § 1414(d)). “The IEP is a written statement that sets forth the child’s pres ent performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whethe r the child has met the goals.” Miller , 565 F.3d at 1236 (internal quotation marks omitted). If a parent believes her ch ild “is not being provided a FAPE in the least restrictive environment, [she is] given ‘an opportunity to present complaints with respect to any matter relati ng to the . . . educational pl acement of the child, or the provision of a free appropriate pub lic education to such child.’” Id. (quoting 20 U.S.C. § 1415(b)(6)). While administra tive procedures are pending, the stay-put provision requires a child to remain in his or her “then-cu rrent educational placement.” 20 U.S.C. § 1415(j). 2 This provision serves “in essence, as an automatic preliminary injunction.” M.R. v. Ridley Sch. Dist. , 744 F.3d 112, 118 ( 3d Cir. 2014) (internal quotation marks omitted). Accordingly, “[o] nce a court ascertains the st udent’s current educational placement, the movants are entitled to an order maintaining that placement without satisfaction of the usual prereq uisites to injunctive relief.” Id. (brackets and internal quotation marks omitted); see also D.M. v. N.J. Dep’t of Educ. , 801 F.3d 205, 211 (3d Cir. 2015) (“The usual prerequisites to injunctive relief are not required.”

2 Section 1415(j) provides: “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 sh all remain in the then-curre nt educational placement of the child . . . .”5 (internal quotation marks omitted)). Here , the underlying operative facts are not in dispute. Thus, we review de novo the distri ct court’s determinati on of R.S.’s stay-put placement. See D.M. , 801 F.3d at 211 (reviewing de no vo “the application of the ‘stay-put’ rule to a gi ven set of facts”); AW ex rel. Wilson v. Fairfax Cty. Sch. Bd. , 372 F.3d 674, 677 (4th Cir. 2004) (“This Court revi ews the district court’s interpretation of the IDEA de novo .”); cf. Sytsema ex rel. Sytsema v. Acad. Sch. Dist.
No. 20 , 538 F.3d 1306, 1311 (10th Cir. 2008) (in reviewing a final administrative decision under the IDEA, federal courts appl y a “modified de novo review standard,” which assumes the ALJ’s factual findings are “ prima facie correct” (internal quotation marks omitted)). We emphasize that our review is limited to the district court’s October 17, 2014 order granting in part a preliminary injunction, which was based on the court’s determin ation of R.S.’s stay-put placement and which requires R.S.’s educational placement to remain at CMCA until the related administrative proceedings have concluded. The IDEA does not define “educational placement.” Erickson v. Albuquerque Pub. Sch. , 199 F.3d 1116, 1121 (10th Cir. 1999). This circui t has recognized that in some cases “the dispositive fa ctor is the IEP in place when the stay-put provision is invoked,” while in others, “a fact-dri ven approach” is appropriate whereby educational placement is defi ned as “something more than the actual school attended by the child and something less than the child’s ultimate educational goals.” Id. (internal quotation marks omitted); see also N.D. ex rel. Pa rents Acting as Guardians Ad Litem v. Haw. Dep’t of Educ. , 600 F.3d 1104, 1116 (9th Cir. 2010) (holding “a6 change in educational placement relates to whether the student is moved from one type of program—i.e., regular class—to another type—i.e., home instruction [or] . . . when there is a significant change in the student’s pr ogram even if the student remains in the same setting”); Drinker ex rel. Drinker v. Colonial Sch. Dist. , 78 F.3d 859, 867 (3d Cir. 1996) (stating the “dispos itive factor in decidi ng a child’s ‘current educational placement’ should be the [IEP ] actually functioning when the ‘stay put’ is invoked.” (internal quotation marks omitted)). Although R.S. was not attending CMCA at the time of the hearing on the stay-put motion, the IEP in place at that time was the May 2014 IEP, which listed CMCA as his school of atte ndance. In addition, R. S. had attended CMCA the previous school year for kinde rgarten. Although Ms. Smith contends that R.S. is entitled to a proper placement at an unidentified private school, transferring him to a new school (without any showing that th e new school could implement the IEP) would not comply with the stay-put provisi on. We conclude th at R.S.’s stay-put placement was CMCA. Consequently, the Sc hool District is not required to fund a private-school placement for R.S. Therefore, upon de novo review, we affirm the preliminary injunction requiring the School District to maintain R.S.’s educa tional placement at CMCA during the pendency of admini strative proceeding No. EA 2014-0018. We also affirm the court’s denial of Ms. Smith’s alternative clai m for private-school funding.7 III. Conclusion The district court’s order granting in part and denying in part Ms. Smith’s motion for a preliminary in junction is affirmed.

Entered for the Court
Carolyn B. McHugh Circuit Judge