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

.

B OONE C OUNTY B OARD OF E DUCATION et al., Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ ┘ No. 13-6514

Appeal from the United St ates 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, Circui t Judges; STAFFORD, District Judge. *

_________________ COUNSEL

ARGUED: Mary Ann Stewart, ADAMS, ST EPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants. Karen H. Ginn, CHEVALIER, GI NN & KRUER, P.S.C., Ft. Mitchell, Kentucky, for Appellees. ON BRIEF: Mary Ann Stewart, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appe llants. 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 hi s parents, brought
this action under the Individua ls with Disabilities Educati on Act (“IDEA”), 20 U.S.C. §§ 1400– 1482, arguing that the Boone County Board of Edu cation and an assortme nt of individual defendants (collectively, “the Di strict”) had failed to offer a “f ree 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 dist rict 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 Releas e Committee (“ARC”) determined that N.W. qualified for special-education services and pl aced him at St. Rita’s School for the Deaf under an individual education program (“IEP”). At St . Rita’s, a private school in Cinc innati, N.W. participated in a special program for children with apraxia, which in cluded 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 unilate rally placed him at Applied Be havioral Services (“ABS”), another private school in Cincinnati. N.W.’s pare nts requested that the Di strict reimburse them for the tuition and transportation costs of N.W.’s attendance. Th e District convened an ARC in October 2010 and generated a new IEP. The Dist rict and N.W.’s parent s, however, could not

1 According to the National Institutes of Health, apraxi a 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. Unab le to reach an agreemen t, the parties entered
mediation.
Mediation resulted in a settlement agreement. The District agreed to reimburse N.W.’s parents for the tuition and transportation expe nses incurred from August 19, 2010 to November 30, 2010. Additionally, the District agreed to pa y a portion of N.W.’s tu ition 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 th e District’s schools for the 2011–2012 school year. Moreover, “[t]he parties agr ee[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 ad mission as to educational placement, negligence,
or violation of IDEA or Kentucky law.” Id.
In the Spring of 2011, the District attempte d to convene an ARC to develop a transition plan for N.W. N.W.’s parents repeatedly rescheduled. Eventual ly, 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 Octobe r 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 conve ned a hearing at which N.W.’s father and various District representa tives testified. The hearing o fficer 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 th e 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 wa s being used while [N.W.] was attending ABS. [N.W.] continues to be a student at ABS during the pendency of th is appeal. Unde r the situation here where the parties are disput ing 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, th e hearing officer ordered the District to reimburse N.W.’s parents for the costs of N.W. attending ABS for 5.5 ho urs 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 o fficer’s stay-put decisi on, holding that ABS was not N.W.’s “placement” because “no ARC decisi on 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 pl an 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, foun d that “N.W. ha[d] not establishe d 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 di strict court also found that “N.W.’s operative placement under which he wa s actually receiving instruction at the time the dispute arose was ABS.” Id. at 23 (Page ID #272). Consequent ly, the district court ordered the hearing officer’s stay-put ruli ng to be reinstated and the Distri ct 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 . . . revi ews 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 e ducational 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 we ight, 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 Ci r. 2001)). “Mixed questions of law and fact, incl uding 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 Re imbursement 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 or dered the District to reimburse N.W.’s parents for the tuition and transportation costs incurred by N.W. attending AB S. The District claims that the IDEA prohibits such an order of reimbursement. Give n 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 relate d 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 disa bility, who previously received special education and related servic es 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 m ade 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 pare nts . . .”) 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 st atute 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 ca se, 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 availabl e. This reading becomes even stronger when subsection (ii) is read in light of subsection (i), which stat es 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 word s of a statute must be read in their context and with a view to their place in the overall statutory sche me.” (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 s o, it appears to have explicitly codified Supr eme Court dicta. In School Committee of Burlington v. Department of Education of Massachusetts , 471 U.S. 359 (1985), the Court ha d stated that “parents who unilaterally change their child’s placement during the pendency of review proceedings, without
the consent of state or local school official s, do so at their own financial risk.” Id . at 373–74. Eight years later, the Court not ed that “public educational au thorities 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 se tting, or place the child in an a ppropriate private setting of the State’s choice. This is IDEA’s mandate, and sc hool 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 th eir 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 woul d not offer a FAPE, and (2) that N.W.’s parents unilaterally enrolled N.W. at ABS. Those fact ual findings remain undisturbed, and as a result,
the district court’s order of reimbursement is c ontrary to the clear inte nt 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 re sponse to the statutory argum ent discussed above; rather, they contend that the more-specific “stay-pu t” provision, 20 U.S.C. § 1415(j), in the IDEA governs this case. Based on the te xt of § 1415(j) and its accompa nying 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 agen cy and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, ifNo. 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 th at 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 Distri ct to reimburse N.W.’s parents for the cost of attendance and transportation wh ile N.W.’s parents challenged this action. The trouble with N.W.’s parents’ argument (a nd the district court’s deci sion) 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 [sta tute] does not define [the relevant word], we look to the ordinary meaning of the te rm.”). The district c ourt, 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 a nd the district court’s reliance upon Thomas is the fact that the Department of Education has defi ned “placement” in its regulations since Thomas was decided. See 34 C.F.R. § 300.116. This regulat ion 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 ot her 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 promulga te 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 Depart ment of Education’s promulgation of § 300.116No. 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 requ ires 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. Moreove r, the District maintained at all points in the dispute that New Haven Elemen tary, 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 parent s under the IDEA’s stay-put provision.
N.W.’s parents offer several counterargumen ts, 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 distri ct’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 dist ricts 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, wh ile these cases may have opined that the “[stay-put] provisi on 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 subs equent 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 logi cally dubious to stay in a school that you have never attended. The answer to this wrinkle, ho wever, is that N.W.’s placement—for purposes of the stay-put provision—is the la st agreed-upon school that N.W. attended: St. Rita’s. The District and N.W.’s pare nts explicitly agreed to his placement there. See Appellants App’x at 1. Moreover, the IDEA allows for public school distri cts to agree to placement s in private schools.
See 20 U.S.C. § 1412(a)(10). Thus, cl assifying St. Rita’s as N.W.’s placement comports with the statute and regulations, and it eliminates the allege d 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 un der 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 part y makes an admission as to educational placement . . . .” Appellants App’x at 13. Consequen tly, this counterargument quickly evaporates.
In summary, even if 20 U.S.C. § 1412(a)(1 0)(C) does not apply to this situation, N.W. does not qualify for stay-put protection (and re imbursement) because his parents unilaterally
enrolled him in ABS without the District’s approval. Under IDEA and its accompanying regulations, the District’s approva l is necessary for N.W. to be “placed” at a school. Because N.W. was not “placed” at ABS, the district cour t erred in concluding that he qualified for stayput reimbursement.

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