1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0192p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

N.W., a minor child, by and through his next friend 

and parents J.W. and J.W., et al., 

Plaintiffs-Appellees, 

v. 

BOONE COUNTY BOARD OF EDUCATION et al., 

Defendants-Appellants. 

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No. 13-6514 

Appeal from the United States District Court 

for the Eastern District of Kentucky at Covington. 

No. 2:13-cv-00007—William O. Bertelsman, District Judge. 

Argued: August 6, 2014 

Decided and Filed: August 18, 2014 

Before: MOORE and McKEAGUE, Circuit Judges; STAFFORD, District Judge.*

_________________ 

COUNSEL 

ARGUED: Mary Ann Stewart, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, 

Covington, Kentucky, for Appellants. Karen H. Ginn, CHEVALIER, GINN & KRUER, P.S.C., 

Ft. Mitchell, Kentucky, for Appellees. ON BRIEF: Mary Ann Stewart, ADAMS, STEPNER, 

WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants. Karen H. Ginn, 

CHEVALIER, GINN & KRUER, P.S.C., Ft. Mitchell, Kentucky, for Appellees. Mary Suzanne 

Cassidy, O’HARA, RUBERG, TAYLOR, SLOAN & SERGENT, Covington, Kentucky, for 

Amici Curiae. 

 *

The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of 

Florida, sitting by designation. 

>
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 2 

_________________ 

OPINION

_________________ 

KAREN NELSON MOORE, Circuit Judge. N.W., by and through his parents, brought 

this action under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400–

1482, arguing that the Boone County Board of Education and an assortment of individual 

defendants (collectively, “the District”) had failed to offer a “free appropriate public education” 

(“FAPE”) to N.W., as required by the IDEA. The district court ruled against N.W., but it 

nonetheless ordered the District to reimburse N.W.’s parents for the costs incurred as a result of 

N.W. attending a private school while the litigation played out. The District appeals this portion 

of the district court’s ruling. Because the IDEA bars a district court from ordering 

reimbursement absent a finding that the school district failed to provide a FAPE, we VACATE

this part of the district court’s judgment. 

I. BACKGROUND

 N.W. is a nine-year-old, autistic child, born in 2004, who has been diagnosed with 

apraxia.1

 In 2007, N.W.’s parents enrolled him in the District’s schools when he was three years 

old. An Admissions and Release Committee (“ARC”) determined that N.W. qualified for 

special-education services and placed him at St. Rita’s School for the Deaf under an individual 

education program (“IEP”). At St. Rita’s, a private school in Cincinnati, N.W. participated in a 

special program for children with apraxia, which included learning sign language. 

 In June 2010, N.W.’s parents became dissatisfied with the program at St. Rita’s, removed 

N.W. from the school, and unilaterally placed him at Applied Behavioral Services (“ABS”), 

another private school in Cincinnati. N.W.’s parents requested that the District reimburse them 

for the tuition and transportation costs of N.W.’s attendance. The District convened an ARC in 

October 2010 and generated a new IEP. The District and N.W.’s parents, however, could not 

 1

According to the National Institutes of Health, apraxia of speech “is a speech disorder in which a person 

has trouble saying what he or she wants to say correctly and consistently. It is not due to weakness or paralysis of 

the speech muscles (the muscles of the face, tongue, and lips).” National Inst. on Deafness & Other Communication 

Disorders, “Apraxia of Speech” (Nov. 2002), http://www.nidcd.nih.gov/health/voice/pages/apraxia.aspx. 
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 3 

agree on placement—the District maintained that it could educate N.W. in its schools; N.W.’s 

parents wanted N.W. to remain at ABS. Unable to reach an agreement, the parties entered 

mediation. 

 Mediation resulted in a settlement agreement. The District agreed to reimburse N.W.’s 

parents for the tuition and transportation expenses incurred from August 19, 2010 to November 

30, 2010. Additionally, the District agreed to pay a portion of N.W.’s tuition and transportation 

costs through the summer of 2011. N.W.’s parents, in turn, agreed to attend an ARC that would 

be tasked with creating a plan for N.W. to transition into the District’s schools for the 2011–2012 

school year. Moreover, “[t]he parties agree[d] and acknowledge[d] that this Agreement 

constitute[d] a settlement of [the] disputed claim[s].” Appellants App’x at 13 (Settlement 

Agreement). And “[n]either party ma[de] an admission as to educational placement, negligence, 

or violation of IDEA or Kentucky law.” Id.

 In the Spring of 2011, the District attempted to convene an ARC to develop a transition 

plan for N.W. N.W.’s parents repeatedly rescheduled. Eventually, the parties met and created a 

tentative transition plan. N.W.’s parents, however, balked at the plan’s implementation and filed 

a due-process complaint on October 31, 2011. They alleged that the District’s proposed plan 

would fail to provide N.W. a FAPE,2

 and N.W.’s parents requested a due-process hearing. In 

addition, they asked “[t]hat ABS be considered [N.W.’s] ‘stay-put’ placement.” Appellants 

App’x at 3 (Due Process Compl.). 

 On March 12–13, 2012, the hearing officer convened a hearing at which N.W.’s father 

and various District representatives testified. The hearing officer issued his decision three 

 2

The IDEA provides: 

The term “free appropriate public education” means special education and related 

services that— 

(A) have been provided at public expense, under public supervision and 

direction, and without charge; 

(B) meet the standards of the State educational agency; 

(C) include an appropriate preschool, elementary school, or secondary school 

education in the States involved; and 

(D) are provided in conformity with the individualized education program 

required under section 1414(d) of this title. 

20 U.S.C. § 1401(9).
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 4 

months later and found that N.W.’s parents failed to prove that the District’s plan would deny 

N.W. a FAPE. R. 4-1 at 11 (Due-Process Hr’g Dec.) (Page ID #41). However, the hearing 

officer also stated that “[t]he present IEP was being used while [N.W.] was attending ABS. 

[N.W.] continues to be a student at ABS during the pendency of this appeal. Under the situation 

here where the parties are disputing the transition plan, [N.W.] stays at ABS under ‘stay put[.]’” 

Id. at 14 (Page ID #44) (citing Casey K. ex rel. Norman K. v. St. Anne Cmty. High Sch. Dist. No. 

302, 400 F.3d 508 (7th Cir. 2005)). As a result, the hearing officer ordered the District to 

reimburse N.W.’s parents for the costs of N.W. attending ABS for 5.5 hours per day during the 

2011–2012 school year. Id. at 15 (Page ID #45). 

 Both parties turned to the Exceptional Children Appeal Board (“ECAB”). The ECAB 

affirmed the hearing officer’s determination that N.W.’s parents had failed to show that the 

District would not provide N.W. with a FAPE. R. 16-3 at 4 (ECAB Dec.) (Page ID #210). 

However, the ECAB also reversed the hearing officer’s stay-put decision, holding that ABS was 

not N.W.’s “placement” because “no ARC decision or legal decision decided that placement at 

ABS was proper.” Id. at 20 (Page ID #226). 

 In response, N.W.’s parents filed suit in the district court on behalf of their son, 

contending inter alia that the District’s plan would fail to provide a FAPE and “[t]hat the 

[ECAB] incorrectly overturned the finding of the hearing officer that N.W.’s ‘stay-put’ 

placement was [ABS].” R. 1 at 8 (Compl. at ¶ 30) (Page ID #8). The district court, like the 

hearing officer and the ECAB, found that “N.W. ha[d] not established that the District’s offer of 

placement at New Haven [a District elementary school with an autism-specific classroom] was 

inappropriate.” R. 20 at 21 (D. Ct. Op.) (Page ID # 270). However, the district court also found 

that “N.W.’s operative placement under which he was actually receiving instruction at the time 

the dispute arose was ABS.” Id. at 23 (Page ID #272). Consequently, the district court ordered 

the hearing officer’s stay-put ruling to be reinstated and the District to reimburse N.W.’s parents 

for the cost of N.W. attending ABS. The district has appealed to this court; N.W.’s parents have 

not done so. See R. 22 at 1 (Notice of Appeal) (Page ID #276). 
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 5 

II. ANALYSIS

A. Standard of Review

“A district court . . . reviews IDEA cases under a modified de novo standard, meaning 

that it may set aside administrative findings in an IDEA case ‘only if the evidence before the 

court is more likely than not to preclude the administrative decision from being justified based 

on the agency’s presumed educational expertise, a fair estimate of the worth of the testimony, or 

both.’” Bd. of Educ. of Fayette Cnty. v. L.M., 478 F.3d 307, 312–13 (6th Cir. 2007) (quoting 

Berger v. Medina City Sch. Dist., 348 F.3d 513, 519 (6th Cir. 2003)). “‘Less weight is due to an 

agency’s determinations on matters for which educational expertise is not relevant because a 

federal court is just as well suited to evaluate the situation.’” Deal v. Hamilton Cnty. Bd. of 

Educ., 392 F.3d 840, 849 (6th Cir. 2004) (quoting McLaughlin v. Holt Pub. Sch. Bd. of Educ., 

320 F.3d 663, 669 (6th Cir. 2003)). “More weight, however, is due to an agency’s 

determinations on matters for which educational expertise is relevant.” Id. (internal quotation 

marks omitted). 

 “[We], in turn, appl[y] a clearly erroneous standard of review to the district court’s 

findings of fact and a de novo standard of review to its conclusions of law.” Id. at 850 (citing 

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir. 2001)). “Mixed 

questions of law and fact, including the question of whether a child was denied a FAPE, are 

reviewed de novo.” Id. (citation omitted). Statutory interpretation presents a question of law 

that we also review de novo. United States v. Coss, 677 F.3d 278, 283 (6th Cir. 2012). 

B. The IDEA Does Not Permit District Courts to Order Reimbursement Absent a Finding 

That a School District Failed to Offer a FAPE. 

 The district court concluded (1) that N.W.’s parents failed to show that the District denied 

N.W. a FAPE and (2) that N.W.’s parents unilaterally withdrew their child from the District’s 

schools, yet the district court ordered the District to reimburse N.W.’s parents for the tuition and 

transportation costs incurred by N.W. attending ABS. The District claims that the IDEA 

prohibits such an order of reimbursement. Given the text and purpose of the IDEA, as well as 

relevant caselaw, we agree with the District and VACATE the district court’s order of 

reimbursement. 
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 6 

 The IDEA states that “[it] does not require a local educational agency to pay for the cost 

of education, including special education and related services, of a child with a disability at a 

private school or facility if that agency made [a FAPE] available to the child and the parents 

elected to place the child in such private school or facility.” 20 U.S.C. § 1412(a)(10)(C)(i). 

More specifically, 

[1] If the parents of a child with a disability, who previously received special 

education and related services under the authority of a public agency, enroll the 

child in a private elementary school or secondary school without the consent of or 

referral by the public agency, [2] a court or a hearing officer may require the 

agency to reimburse the parents for the cost of that enrollment [3] if the court or 

hearing officer finds that the agency had not made a free appropriate public 

education available to the child in a timely manner prior to that enrollment.

§ 1412(a)(10)(C)(ii) (emphasis added). 

The first part of this subsection (“If the parents . . .”) describes the general class of cases 

to which subsection (ii) applies. The second part (“a court or a hearing officer may. . .”) is a 

grant of power to the adjudicators. The third part (“if the court . . .”) sets forth a scenario in 

which it may be appropriate to award reimbursement. By expressly identifying one circumstance 

in which reimbursement may be required, the statute may be construed, under the principle of 

expressio unius est exclusio alterius, as implicitly prohibiting the courts from awarding 

reimbursement in other circumstances. See, e.g., POM Wonderful LLC v. Coca-Cola Co., 134 S. 

Ct. 2228, 2238 (2014) (applying the expressio unius canon); TRW Inc. v. Andrews, 534 U.S. 19, 

28 (2001) (same); but see Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (noting that 

it is not always appropriate to apply the canon). In this case, Congress’s use of conditional 

phrasing (“if . . .”) suggests that reimbursement is appropriate only if a court or agency finds that 

the school district did not make a FAPE available. This reading becomes even stronger when 

subsection (ii) is read in light of subsection (i), which states that public school districts do not 

need to pay for the private-school education of students if the district offers a FAPE. See 

Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1357 (2012) (“It is a fundamental canon of 

statutory construction that the words of a statute must be read in their context and with a view to 

their place in the overall statutory scheme.” (internal quotation marks omitted)).
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 7 

Moreover, Congress added subsection (ii) in 1997, see Tucker ex rel. Tucker v. Calloway 

Cnty. Bd. of Educ., 136 F.3d 495, 500 (6th Cir. 1998), and in doing so, it appears to have 

explicitly codified Supreme Court dicta. In School Committee of Burlington v. Department of 

Education of Massachusetts, 471 U.S. 359 (1985), the Court had stated that “parents who 

unilaterally change their child’s placement during the pendency of review proceedings, without 

the consent of state or local school officials, do so at their own financial risk.” Id. at 373–74. 

Eight years later, the Court noted that “public educational authorities who want to avoid 

reimbursing parents for the private education of a disabled child can do one of two things: give 

the child a [FAPE] in a public setting, or place the child in an appropriate private setting of the 

State’s choice. This is IDEA’s mandate, and school officials who conform to it need not worry 

about reimbursement claims.” Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993). 

Given this textual and contextual background, we read subsection (ii) to bar district courts from 

ordering reimbursement, absent a finding that the school district failed to provide a FAPE, when 

parents have unilaterally removed their child from the public schools. 

 In this case, N.W.’s parents have not appealed the district court’s determinations (1) that 

they failed to prove the District’s plan would not offer a FAPE, and (2) that N.W.’s parents 

unilaterally enrolled N.W. at ABS. Those factual findings remain undisturbed, and as a result, 

the district court’s order of reimbursement is contrary to the clear intent of § 1412(a)(10)(C)(ii), 

as construed above. Consequently, we must VACATE the district court’s decision to order 

reimbursement.

C. The IDEA’s “Stay-Put” Provision Does Not Apply to N.W. 

N.W.’s parents offer little response to the statutory argument discussed above; rather, 

they contend that the more-specific “stay-put” provision, 20 U.S.C. § 1415(j), in the IDEA 

governs this case. Based on the text of § 1415(j) and its accompanying regulations, as well as 

the consequences of N.W.’s parents’ reading of the IDEA, we conclude that they are mistaken.

 Section 1415(j) states:

[D]uring 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, or, if 
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 8 

applying for initial admission to a public school, shall, with the consent of the 

parents, be placed in the public school program until all such proceedings have 

been completed.

See also 34 C.F.R. § 300.518. N.W.’s parents contend that stay-put is mandatory; that N.W.’s 

“current educational placement” is ABS; and that because the IDEA allows N.W. to stay at ABS, 

the district court was correct to order the District to reimburse N.W.’s parents for the cost of 

attendance and transportation while N.W.’s parents challenged this action. The trouble with 

N.W.’s parents’ argument (and the district court’s decision) is the second step. 

 The IDEA does not provide a definition for “current educational placement.” Faced with 

this problem, we would usually give the term its ordinary meaning. See Ransom v. FIA Card 

Servs., N.A., 131 S. Ct. 716, 724 (2011) (“Because the [statute] does not define [the relevant 

word], we look to the ordinary meaning of the term.”). The district court, in fact, took this 

approach by relying upon Thomas v. Cincinnati Board of Education, 918 F.2d 618 (6th Cir. 

1990). R. 20 at 22–23 (D. Ct. Op.) (Page ID #271–72). Thomas gave “current educational 

placement” its “plain meaning” and held that the term “refers to the operative placement actually 

functioning at the time the dispute first arises.” 918 F.2d at 625–26. The district court applied 

this definition and, in this case, found that N.W.’s current educational placement was ABS. 

 The problem with this finding and the district court’s reliance upon Thomas is the fact 

that the Department of Education has defined “placement” in its regulations since Thomas was 

decided. See 34 C.F.R. § 300.116. This regulation states: “(b) The child’s placement—(1) [i]s 

determined at least annually; (2) [i]s based on the child’s IEP; and (3) [i]s as close as possible to 

the child’s home . . . .” § 300.116(b). Moreover, “[t]he placement decision . . . [i]s made by a 

group of persons, including the parents, and other persons knowledgeable about the child, the 

meaning of the evaluation data, and the placement options.” § 300.116(a). These definitions 

indicate that the school district must, in some fashion, approve of the placement decision and that 

the parents cannot unilaterally decide upon which school will serve as the child’s “placement.” 

Otherwise, there would be no reason to promulgate a regulation stating that the parents must 

have some involvement in determining the child’s placement, see § 300.116(a), and that the 

placement will be “based on the child’s IEP,” see § 300.116(b). The Thomas court’s approach 

may have been correct in 1990, but the Department of Education’s promulgation of § 300.116 
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 9 

renders that interpretation obsolete. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency 

construction otherwise entitled to Chevron deference only if the prior court decision holds that its 

construction follows from the unambiguous terms of the statute and thus leaves no room for 

agency discretion.”).3

 Under this definition of “placement,” which requires the school district to approve of the 

educational setting at some point, ABS does not qualify as N.W.’s “current educational 

placement.” The District never agreed to N.W. attending ABS in an IEP, though the 2010 IEP 

notes that he was attending ABS. See Appellees App’x at 68. Moreover, the District maintained 

at all points in the dispute that New Haven Elementary, or another one of its schools that had an 

autism-specific classroom, would offer a FAPE. Thus, the district court erred in ordering the 

District to reimburse N.W.’s parents under the IDEA’s stay-put provision. 

 N.W.’s parents offer several counterarguments, but we find none of them persuasive. 

First, N.W.’s parents contend that other circuits have affirmatively rejected an interpretation of 

“placement” that requires the school district’s agreement. For support, they cite Zvi D. v. 

Ambach, 694 F.2d 904 (2d Cir 1982), and Drinker ex rel. Drinker v. Colonial School District, 

78 F.3d 859 (3d Cir. 1996). See Appellees Br. at 7. These cases, however, are easily 

distinguished in several ways. One, these cases predate the Department of Education’s 

regulation. Two, in both cases, the school districts had previously placed the student in—

meaning that they approved of—the school that the children were claiming a right in which to 

stay put. See Drinker, 78 F.3d at 861; Zvi D., 694 F.2d at 907. So, while these cases may have 

opined that the “[stay-put] provision is, in effect, an automatic preliminary injunction” in the 

situations before those courts, Zvi D., 694 F.2d at 906, those cases do not require us to interpret 

“placement” in a similar fashion in this case. 

 Second, N.W.’s parents argue that using any placement besides ABS would result in 

absurdity because N.W.’s placement would be a school that he has never attended. See 

 3

In Thomas, the panel justified its plain-meaning approach, in part, because “[n]either the [IDEA] itself nor 

its accompanying regulations define[d] the term ‘placement.’” 918 F.2d at 625. This is hardly the clear statement 

required by Brand X for federal-court interpretations to preclude subsequent agency interpretations of the statute. 

See Metropolitan Hosp. v. U.S. Dep’t of Health & Human Servs., 712 F.3d 248, 255–56 (6th Cir. 2013). 
No. 13-6514 N.W. et al. v. Boone Cnty. Bd. of Educ. et al. Page 10 

Appellees Br. at 8. Indeed, it would be odd to label New Haven Elementary as N.W.’s 

placement for stay-put purposes because it is logically dubious to stay in a school that you have 

never attended. The answer to this wrinkle, however, is that N.W.’s placement—for purposes of 

the stay-put provision—is the last agreed-upon school that N.W. attended: St. Rita’s. The 

District and N.W.’s parents explicitly agreed to his placement there. See Appellants App’x at 1. 

Moreover, the IDEA allows for public school districts to agree to placements in private schools. 

See 20 U.S.C. § 1412(a)(10). Thus, classifying St. Rita’s as N.W.’s placement comports with the 

statute and regulations, and it eliminates the alleged absurdity. Unfortunately for N.W.’s parents, 

it also undermines their argument that ABS is N.W.’s placement. 

 Finally, N.W.’s parents contend that—even under an interpretation of “placement” that 

requires the school district’s approval—ABS is N.W.’s placement under the terms of the 2010 

settlement agreement. See Appellees Br. at 8. The problem with this argument is the plain text 

of the agreement, which states: “Neither party makes an admission as to educational placement 

. . . .” Appellants App’x at 13. Consequently, this counterargument quickly evaporates. 

 In summary, even if 20 U.S.C. § 1412(a)(10)(C) does not apply to this situation, N.W. 

does not qualify for stay-put protection (and reimbursement) because his parents unilaterally 

enrolled him in ABS without the District’s approval. Under IDEA and its accompanying 

regulations, the District’s approval is necessary for N.W. to be “placed” at a school. Because 

N.W. was not “placed” at ABS, the district court erred in concluding that he qualified for stayput reimbursement.

III. CONCLUSION

 For the foregoing reasons, we VACATE the district court’s order of reimbursement.