FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

N. E., by and through his parents

C.E. and P.E.; C. E.; and P. E.,

Plaintiffs-Appellants,

v.

SEATTLE SCHOOL DISTRICT,

Defendant-Appellee.

No. 15-35910

D.C. No.

2:15-cv-01659-JLR

OPINION

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted May 5, 2016

Seattle, Washington

Filed November 17, 2016

Before: Susan P. Graber, Marsha S. Berzon,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Berzon
2 N.E. V. SEATTLE SCHOOL DISTRICT

SUMMARY*

Individuals with Disabilities Education Act

The panel affirmed the district court’s denial of plaintiffs’

motion for a preliminary injunction regarding a student’s

“stay-put” placement pending administrative proceedings

under the Individuals with Disabilities Education Act.

The student had received an Individualized Education

Program (IEP) that encompassed two stages. Before the start

of the second stage, to which the student’s parents did not

agree, the family moved. The new school district proposed

a class setting that was similar to the second stage of the IEP. 

Plaintiffs sought a “stay-put” placement consisting of the

educational setting in which the student was enrolled either

before the IEP or during the first stage of the IEP.

Affirming the district court’s denial of injunctive relief,

the panel held that a partially implemented, multi-stage IEP,

as a whole, is a student’s “then-current educational

placement.” The student’s “then-current educational

placement” therefore was the setting described in the second

stage of his IEP.

Dissenting, Judge Berzon wrote that the majority’s

application of the IDEA’s “stay-put” provision allowed the

student to be placed in a new learning environment, more

restrictive than any in which he had previously been enrolled,

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
N.E. V. SEATTLE SCHOOL DISTRICT 3

over his parents’ objection, and could not be reconciled with

the text of the IDEA or its purposes.

COUNSEL

Lauren Rebecca Hruska (argued) and Charlotte Cassady,

Cassady Law Firm, Seattle, Washington, for PlaintiffsAppellants.

David T. Hokit (argued), Curran Law Firm P.S., Kent,

Washington, for Defendant-Appellee.

OPINION

GRABER, Circuit Judge:

Plaintiff N.E. is a child with a disability who, in

accordance with the Individuals with Disabilities Education

Act (“IDEA”), has received a series of Individualized

Education Programs (“IEP”). In May 2015, three-and-a-half

weeks before the 2014–15 school year ended, the Bellevue

School District produced an IEP for N.E. that encompassed

two stages: The first stage would begin immediately and the

second would begin at the start of the 2015–16 school year. 

N.E.’s parents, Plaintiffs C.E. and P.E., allowed their son to

finish the school year in accordance with the first stage of the

IEP but did not agree to the second stage. Over the summer,

the family moved to Seattle. Just before the start of the

2015–16 school year, Defendant Seattle School District

proposed a class setting for N.E. that was similar to the

second stage of the May 2015 IEP. Plaintiffs objected and

sought a “stay-put” placement.
4 N.E. V. SEATTLE SCHOOL DISTRICT

The pivotal issue is what “educational placement” was

“then-current,” 20 U.S.C. § 1415(j), after N.E.’s family

moved to Seattle in the summer of 2015 but before the

2015–16 school year began. Plaintiffs contend that the “thencurrent educational placement” must be the educational

setting in which N.E. was enrolled either before his May 2015

IEP or, in the alternative, during the first stage of the May

2015 IEP. Defendant counters that the “then-current

educational placement” for the 2015–16 school year is the

setting described in the second stage of the May 2015 IEP. 

We agree with Defendant and, accordingly, affirm the district

court’s denial of injunctive relief.

The relevant facts in this case are not disputed. N.E. was

in the third grade at Newport Heights Elementary School in

the Bellevue School District for most of the 2014–15 school

year. Until the final month of that school year, and in prior

school years, N.E. spent most of his instructional time in

general education classes. His most recent IEP reflecting that

arrangement dates from December 2014.

During the 2014–15 school year, Bellevue School District

officials reported that N.E. exhibited very serious behavioral

problems on a regular basis. As a result, the school district

began to consider changes. An IEP meeting occurred on May

26, 2015, at which Bellevue School District officials

proposed a new IEP that placed N.E. in a self-contained,

special education class for students with behavioral and

emotional disorders (“self-contained class”). Plaintiffs

objected to that proposal and wrote “disagree” on the front

sheet of the proposed IEP. Bellevue officials and Plaintiffs

also discussed where to place N.E. for the remainder of the

school year. Bellevue and Plaintiffs agreed that N.E. would

finish the final few weeks of the 2014–15 school year at a
N.E. V. SEATTLE SCHOOL DISTRICT 5

different school. At that school, he would spend most of the

day in a one-on-two educational setting with a teacher and a

paraeducator, but with no other students (“individual class”).

One day later, on May 27, 2015, the Bellevue School

District produced the May 2015 IEP. The IEP incorporated

two stages: During stage one, N.E. would finish the end of

the 2014–15 school year in the agreed-upon individual class;

during stage two, for the 2015–16 school year and beginning

on September 1, 2015, N.E. would be placed in a selfcontained class. Plaintiffs received that IEP approximately

one week later, along with a prior written notice1notifying

Plaintiffs that the Bellevue School District intended to alter

N.E.’s educational placement and that the individual class

would serve as a transition to the self-contained class. 

Plaintiffs did not file an administrative due process challenge

to the May 2015 IEP and, instead, allowed N.E. to attend the

individual class until the end of the school year on June 22,

2015.

1 Pursuant to the procedural requirements of the IDEA, school

districts must provide parents with “[w]ritten prior notice . . . whenever

the local educational agency proposes to initiate or change or refuses to

initiate or change . . . the identification, evaluation, or educational

placement of the child.” 20 U.S.C. § 1415(b)(3)(A).

In addition to making the arguments discussed in text, Plaintiffs argue

that Bellevue School District committed a procedural error, in violation of

the IDEA, by sending the written notice after the school district had

already implemented stage one of the May 2015 IEP. They argue that this

error prevents the May 2015 IEP from serving as the stay-put placement. 

But that argument was waived; Plaintiffs raised it only in a motion for

reconsideration, which does not suffice to preserve the issue for appeal. 

Hendricks & Lewis PLLC v. Clinton, 766 F.3d 881, 998 (9th Cir. 2014).
6 N.E. V. SEATTLE SCHOOL DISTRICT

Plaintiffs moved to Seattle in the summer of 2015 and

contacted the Seattle School District to enroll N.E. Plaintiffs

requested an individual class setting similar to the one in

which N.E. had completed the prior school year.2 The school

district, however, reviewed N.E.’s records and proposed

placing him in a self-contained class similar to the one

embodied in stage two of the May 2015 IEP. Plaintiffs

objected on September 9, 2015, and filed an administrative

due process challenge. Plaintiffs also filed a “stay-put”

motion, pursuant to 20 U.S.C. § 1415(j), arguing that N.E.’s

stay-put placement was the general education class described

in the December 2014 IEP. Defendant resisted the stay-put

motion and argued that the self-contained class described in

the May 2015 IEP was N.E.’s stay-put placement.3

An administrative law judge agreed with Defendant and

determined that the self-contained class was N.E.’s stay-put

placement. Plaintiffs appealed that decision and filed a

motion with the district court seeking a temporary restraining

2 The dissent argues that a general education class with full-time

paraeducator support (the December 2014 IEP) should be considered

N.E.’s stay-put placement, and it dismisses the individual class (stage one

of the May 2015 IEP) as “understood by all concerned as temporary or

interim,” and “not reflect[ing] any considered judgment, at any point, that

the temporary placement is suitable for the long-term educational

development of the child.” Dissent at 22–23. But N.E.’s parents, citing

the recommendations of two psychologists, requested an individual class

setting when they first contacted the Seattle School District. In other

words, Plaintiffs initially sought a more isolated, not a less isolated,

environment for N.E. Had the Seattle School District acceded

immediately to Plaintiffs’ wishes, N.E. would not have been placed in a

general education class.

3 Plaintiffs do not argue that Defendant’s proposal differed

meaningfully from the second stage of the May 2015 IEP.
N.E. V. SEATTLE SCHOOL DISTRICT 7

order and a preliminary injunction. The motion sought an

order requiring Defendant to place N.E. in a general

education class pending the outcome of the due process

challenge. The district court denied Plaintiffs’ motion on the

ground that they had not established a likelihood of success

on the merits. Plaintiffs timely appeal.

We review the denial of a preliminary injunction for

abuse of discretion. Prudential Real Estate Affiliates, Inc. v.

PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). But we

review legal questions, such as the meaning of a statute, de

novo. Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp.,

174 F.3d 1036, 1046 (9th Cir. 1999).

The pertinent portion of the IDEA provides:

[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 . . . .

20 U.S.C. § 1415(j) (emphasis added). The IDEA does not

define “then-current educational placement.” The reading

most consistent with the ordinary meaning of the phrase

suggests that the “then-current educational placement” refers

to the educational setting in which the student is actually

enrolled at the time the parents request a due process hearing

to challenge a proposed change in the child’s educational

placement. But two conceptual difficulties complicate the

analysis. First, during the hiatus between school years, it is

artificial to refer to remaining in a then-current placement;

literally, there is none. Second, when an IEP contains two
8 N.E. V. SEATTLE SCHOOL DISTRICT

stages, determining the “then-current educational placement”

requires one to look either backward or forward.4 Here is a

graphic representation of the situation:

Our caselaw assists us in resolving the conundrum. We

have defined “educational placement” as “the general

educational program of the student.” N.D. v. Haw. Dep’t of

Educ., 600 F.3d 1104, 1116 (9th Cir. 2010). More

specifically, we have, in a series of cases, “interpreted

‘current educational placement’ to mean ‘the placement set

forth in the child’s last implemented IEP.’” K.D. ex rel. C.L.

v. Dep’t of Educ., 665 F.3d 1110, 1117–18 (9th Cir. 2011);

N.D., 600 F.3d at 1114; L.M. v. Capistrano Unified Sch. Dist.,

556 F.3d 900, 911 (9th Cir. 2009); Johnson ex rel. Johnson v.

Special Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir.

2002) (per curiam). Although the statute refers to

“educational placement,” not to “IEP,” the purpose of an IEP

is to embody the services and educational placement or

placements that are planned for the child. See Timothy O. v.

4

It is our view that the change of school districts, in this case, does

not affect the analysis.
N.E. V. SEATTLE SCHOOL DISTRICT 9

Paso Robles Unified Sch. Dist. 822 F.3d 1105, 1111–12 (9th

Cir. 2016) (describing the creation and elements of an IEP).

That rule does not fully resolve the dispute here, though,

because the parties disagree about the status of N.E.’s “thencurrent educational placement.” Plaintiffs contend that a

multi-stage IEP should be viewed as containing several

discrete “educational placements” and that any unrealized

stage within such an IEP should be seen as an unimplemented

“educational placement” that cannot serve as the stay-put

placement. Thus, Plaintiffs argue, because stage two of the

May 2015 IEP was never implemented, it cannot be

considered the “then-current educational placement.” That

conclusion, according to Plaintiffs, leaves only two options as

permissible stay-put placements: the individual class setting

described in stage one of the May 2015 IEP or the general

education setting that preceded the May 2015 IEP. Because

the individual class setting was considered short-term at the

time the parties created the May 2015 IEP, Plaintiffs claim

that the earlier general education setting is the most

appropriate stay-put placement. Defendant counters that the

May 2015 IEP, as a whole, was N.E.’s “then-current

educational placement” and that no legal authority precludes

a multi-stage IEP or an IEP that spans a summer break.

We agree with Defendant that a partially implemented,

multi-stage IEP, as a whole, is a student’s then-current

educational placement. A multi-stage IEP could be structured

as several distinct IEPs, but it need not be. For example,

some of our past cases assume that a single IEP may contain

several phases. See, e.g., T.B. ex rel. Brenneise v. San Diego

Unified Sch. Dist., 806 F.3d 451, 462–63 (9th Cir. 2015)

(describing a procedural defect in a multi-stage IEP, but not

criticizing the IEP for having several stages), cert. denied,
10 N.E. V. SEATTLE SCHOOL DISTRICT

136 S. Ct. 1679 (2016). Plaintiffs’ reading of the statute

would allow students and their families to challenge the

second half of any two-stage IEP when the transition occurs

during a school break and would permit repeated challenges

at every stage of a multi-stage IEP. We do not think that

Congress intended that result.

Additionally, by the time N.E.’s parents filed their due

process challenge, the second stage of the May 2015 IEP had

already been scheduled to start. As noted, the May 2015 IEP

provided that stage two—the self-contained

placement—would begin on September 1, 2015, while N.E’s

parents did not request a due process hearing until September

9, 2015. Under Plaintiffs’ view, parents who disagree with a

new IEP could wait until it is scheduled to take effect, pull

their child out of school, and then request a due process

hearing after the effective date of the new IEP. The new IEP

would not be “implemented” because the child is not

physically present in the new setting. By this logic, the

parents could then avail themselves of the stay-put

mechanism to enforce the terms of a preferred old IEP during

the course of the new school year while their due process

challenge is litigated. Once again, we do not think that

Congress intended such a result because it would undermine

the cooperative process envisioned by the IDEA.

We do not suggest that Plaintiffs’ request for a due

process hearing was untimely; the issue here does not pertain

to a statute of limitations. Rather, the question simply is how

to identify the status quo when a timely challenge occurs. For

example, had a one-stage IEP been completed on August 31,

for a single year, had N.E. begun school on September 1, and

had his parents brought their challenge a week later, the

challenge plainlywould have been timely; but, just as plainly,
N.E. V. SEATTLE SCHOOL DISTRICT 11

the “stay-put” placement would have been the current (as of

September 1) placement.

In short, the December 2014 IEP was superseded. The

May 2015 IEP encompassed both the individual class and the

self-contained class stages. Plaintiffs did not challenge the

May 2015 IEP despite having had months to do so before the

scheduled implementation of its second phase in September

2015.5 The May 2015 IEP had already been implemented

(and the scheduled start date for stage two had already

passed) by the time Plaintiffs requested a due process hearing

and, thus, was N.E.’s “then-current educational placement.”

The remaining question is whether the fact that the

hearing request occurred during the summer—before N.E.

physically enrolled in a self-contained class like the one

described in stage two of the May 2015 IEP—forces us to

view stage one as the stay-put placement. We think not, for

two reasons. First, and more importantly, the IEP was

implemented, and stage two was always the intended setting

in which N.E. would begin the 2015–16 school year, effective

September 1 (before N.E.’s parents requested a due process

hearing). Second, we commonly think of education as

forward-looking; we refer to a child who has completed

fourth grade and is about to enter fifth grade as a “rising fifth

grader.” The status quo at the time of the hearing request was

5 We cannot fault Plaintiffs for not having objected to stage one

before allowing N.E. to attend the individual class for the last few weeks

of the 2014–15 school year. But we view as critical the fact that Plaintiffs

never challenged the May 2015 IEP at any point before the new school

year was set to begin. Had Plaintiffs done so, they likely would have been

entitled to a stay-put order under the terms of the December 2014 IEP that

they could have presented to the Seattle School District upon transferring

there.
12 N.E. V. SEATTLE SCHOOL DISTRICT

the anticipated entry into the self-contained program. Stage

two of the May 2015 IEP, therefore, was N.E.’s stay-put

placement.

AFFIRMED.

BERZON, Circuit Judge, Dissenting:

I respectfully, but emphatically, dissent.

The majority applies the IDEA’s “stay-put” provision to

allow N.E. to be placed in an entirely new learning

environment, more restrictive than any in which he had

previously been enrolled, over his parents’ objection. The

“stay-put” provision was designed precisely to preclude

transferring students to new, more restrictive environments

while their parents challenge the transfer. None of the

majority’s explanations for refusing to enforce the statute’s

promise that children will remain in the existing placement

while challenges go forward are persuasive, and each would

open a large gap in the IDEA’s “stay-put” assurance.

I.

The majority opinion is short on facts. The facts matter in

this case. I therefore fill in the gaps.

N.E. is an “intelligent child, [who] performs well when he

desires to be engaged.” Overall, he was, as of the spring of
N.E. V. SEATTLE SCHOOL DISTRICT 13

2015, “very strong academically.

1

 He loves to read. He has

a great knowledge base.” He “qualifies for special education

services . . . due to an ADHD diagnosis,” and because he

needs “specially designed instruction in Social Emotional”

development.

N.E. was enrolled as a student in the Bellevue School

District from kindergarten through third grade. He received

special education services throughout his time there. During

the 2014–15 school year, as in earlier years, N.E. received the

majority of his instruction “mainstreamed” – that is, in a

classroom with other children of his grade – with full time,

one-on-one support from a paraeducator. This instructional

setting, with associated services, was set forth most recently

in his December 2014 Individualized Education Program

(“IEP”).

N.E. had a difficult third grade year; the parties dispute

the reasons for the difficulties. In May 2015, Bellevue

School District conducted a reevaluation of N.E.’s special

educational needs. N.E.’s IEP team met on May 26, 2015 to

discuss the reevaluation and to adopt an IEP for the 2015–16

school year. At that meeting, the Bellevue School District

determined that N.E.’s educational needs had changed and

proposed that N.E.’s placement be altered, to a self-contained

classroom program for emotionally and behaviorally

disordered students (the Cascade Program), for the 2015–16

1 N.E. has scored in the 99th percentile in reading and 85th percentile

in mathematics on his last standardized test.
14 N.E. V. SEATTLE SCHOOL DISTRICT

school year. N.E.’s parents rejected the proposed placement

at the IEP team meeting, writing “disagree” on the draft IEP.2

Just before the May IEP meeting, the school emergency

expelled N.E., due to alleged escalating aggressive behaviors

at school.3 At the time of the meeting, N.E. was still expelled

and several weeks remained in the school year. After the full

IEP team dispersed, N.E.’s parents met with their attorney,

the principal, the Special Education Supervisor, and the

district’s attorney to discuss N.E.’s return to school following

the emergency expulsion.

N.E.’s parents did not want N.E. to return to Newport

Heights Elementary, as their trust in the school had been

strained by the emergency expulsion. They requested that the

district pay for a private school for the approximately three

2 That draft was blank on one page on which a proposed placement

was to be listed. The District had indicated its intention to fill in that page

with the proposed self-contained classroom program. The parents

therefore wrote “disagree” on the cover page of the draft.

3 An “emergency expulsion” in Washington public schools is a denial

of attendance for no more than ten days, imposed while a student poses a

danger or risk of substantial disruption. See Wash. Rev. Code

28A.600.015; Wash. Admin. Code 392-400-295. A student who is

emergency expelled does not have the right to remain in school while

challenging the disciplinary action. See Wash. Admin. Code 392-400-295. 

This state law accords with the IDEA, which allows school authorities to

remove a child with disabilities who violates a code of student conduct

from the classroom, to the extent they would do so for children without

disabilities, for up to ten days. See 20 U.S.C. § 1415(k)(1)(B).

The school asserted that N.E. had gotten into a fight with his younger

brother while waiting to be picked up after school. N.E.’s parents maintain

that the Bellevue School District “fabricated” this incident because of

hostility to N.E.
N.E. V. SEATTLE SCHOOL DISTRICT 15

weeks remaining in the school year. After the district

declined the request, N.E.’s parents and the district agreed

that N.E. would attend a different public elementary school

for those final days, where he would receive individualized

instruction from a certified teacher with support from a fulltime paraeducator. N.E. began attending that individual

classroom program two days later.

This short-term solution was not mentioned at all in the

text of the May 2015 IEP. Instead, the narrative stated that

“[N.E.] will be served in the Cascade program, which has

therapeutic social-emotional and behavior supports.” A grid

in the IEP, though, includes, under “Special Education and

Related Services,” the short-term solution the parents and the

principal had arrived at, as well as the year-long selfcontained classroom setting, to begin the following fall,

discussed at the IEP meeting – that is, the Cascade placement

to which the parents had already noted their objection.

Consistent with this sequence of events and with the Prior

Written Notice,4both school personnel and N.E.’s parents

consistently described this individual class thereafter as a

“temporary” or “interim” program. The Special Education

Supervisor for the Bellevue School District described this

4 The Prior Written Notice sent to N.E.’s parents along with the final

IEP stated as N.E.’s “current placement” “his neighborhood school with

resource room support, 1:1 para[educator], and Behavior Intervention

Plan.” The “proposed or refused action” was “a change of placement to

the Cascade Program.” Under “Any other factors that are relevant to the

action,” the District explained that “[t]o assist with transition to the

[C]ascade program . . . the team discussed that for the remainder of this

school year, [N.E.] would receive 1:1 instruction provided by a

certificated teacher and supported by a paraeducator in an interim setting

at another elementary school.” (emphasis added).
16 N.E. V. SEATTLE SCHOOL DISTRICT

placement as a “temporary program to finish out the

remaining few weeks of the school year,” in an “interim

setting.” Likewise, the Seattle School District later described

the program as a “temporary measure,” taken because “the

decision to move him to a self-contained program came near

the end of the school year.” N.E.’s mother also repeatedly

described the individual class program as “interim.”

At the time N.E.’s parents received the Prior Written

Notice, they knew the familywould be moving from Bellevue

to Seattle during the summer, and that it was the Seattle

School District that would be responsible for deciding N.E.’s

2015–16 placement. Moreover, an Independent Educational

Evaluation funded by the Bellevue School District was

pending at the time of the May 2015 IEP meeting. N.E.’s

parents expected the results of that evaluation to inform the

Seattle School District’s placement decision for the next

school year.

In August, N.E.’s family moved to Seattle and enrolled

N.E. in the Seattle School District. The Seattle School

District scheduled a Transfer Review IEP meeting with the

family for September 3, before the school year started.5 At

the IEP meeting, N.E.’s parents provided the District with a

letter from N.E.’s treating psychologist and the report from

the then-completed IndependentEducationalEvaluation, both

recommending against N.E.’s placement in a self-contained

classroom. Nonetheless, after considering the relevant

materials, the Seattle School District proposed placing N.E.

in a self-contained classroom like the one adopted by the

5

 The Seattle School District’s “Transfer Review IEP” for N.E. lists

the dates of the proposed placement as September 9, 2015 to May 25,

2016, indicating that the school year started on September 9.
N.E. V. SEATTLE SCHOOL DISTRICT 17

Bellevue School District in the May 2015 IEP. N.E.’s parents

rejected the Seattle School District’s proposal at the

September 3 meeting and filed their due process complaint

less than one week later, on September 9.

II

A.

Against this background, I turn to the question whether,

as the majority holds, the statute permitted the Seattle School

District immediately to place N.E., who had been

“mainstreamed” inBellevue except for the three week end-ofyear agreed-upon program, in a self-contained special

education classroom. I am convinced that doing so while the

parents were challenging that restrictive placement violated

the IDEA’s “stay-put” provision.

I begin with the statute:

(i) Section 1415(j), titled “Maintenance of current

educational placement,” 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 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.
18 N.E. V. SEATTLE SCHOOL DISTRICT

20 U.S.C. § 1415(j) (emphasis added). Notably, § 1415(j)

uses the term “then-current educational placement,” not

“Individualized Education Program,” as the benchmark.

Throughout the statute, the term “placement” refers to a

child’s on-the-ground educational experience, not the content

of a document. See, e.g., 20 U.S.C. §§ 1414(e); 1415(d)(2);

(k)(1); (k)(3). For example, Section 1415(k)(1)(B) authorizes

school personnel in exigent circumstances temporarily to

remove a child who violates the code of student conduct from

their “current placement” to an interim alternative setting. Id.

§ 1415(k)(1)(B). Section 1415(k)(1)(C) further provides that

a school can only in narrow circumstances order a “change of

placement” exceeding 10 days.6Id. § 1415(k)(1)(C). Section

1415(k)(3) provides a mechanism for a parent to challenge

such a “decision regarding placement.” Id. § 1415(k)(3). 

These provisions indicate parents may challenge individual

placements without regard to whether or how they are set

forth in an IEP, and so confirm that as used throughout the

statute, “placement” refers to the child’s actual educational

experience.

The phrase “then-current educational placement,” then,

refers to an educational setting actually experienced by the

student. “Because the term connotes preservation of the

status quo, it refers to the operative placement actually

functioning at the time . . . .” Thomas v. Cincinnati Bd. of

6 N.E.’s temporary placement in the individual classroom was not

made by the District pursuant to § 1415(k). Instead, the school district and

N.E.’s parents agreed to place N.E. in the individual classroom as a

temporary measure after his emergency expulsion, because N.E.’s parents

preferred he not return to Newport Heights Elementary School for the

remaining few weeks of the school year.
N.E. V. SEATTLE SCHOOL DISTRICT 19

Educ., 918 F.2d 618, 625–26 (6th Cir. 1990); cf. N.W. ex rel.

J.W. v. Boone Cty. Bd. of Educ., 763 F.3d 611, 617 (6th Cir.

2014) (explaining that any such operative placement cannot

be one in which the parents unilaterally place their child);

34 C.F.R. § 300.116 (describing how educational placements

are determined). Consistently with this understanding,

Section 1415(j) is commonly referred to as the “stay-put”

provision.

(ii) The IDEA separately defines “Individualized

Education Program.” An “Individualized Education

Program” (“IEP”) is “a written statement for each child with

a disability that is developed, reviewed, and revised in

accordance with this section.” 20 U.S.C. § 1414(d)(1)(A). An

IEP sets out a child’s present educational performance and

measurable annual goals, describes how progress toward

those goals will be measured, and explains the special

education and related services the child will receive in the

future. Id.

The term “Individualized Education Program” (“IEP”)

appears in various sections of the statute. See, e.g., 20 U.S.C.

§ 1415(c)(1)(E); (f)(1)(B)(i); (k)(1)(D)(i); (k)(1)(E)(i). The

term helps describe the role of the team responsible for

establishing a child’s education program; the child’s

documented learning goals; and the documents administrators

must review when determining if a child’s behavior is a

manifestation of their disability. As these uses and the

definition indicate, an IEP is a “statement” – a document. It

is not the operational, on-the-ground educational setting

experienced by the child.

(iii) The distinct uses of the terms “placement” and

“Individualized Educational Program” throughout the IDEA
20 N.E. V. SEATTLE SCHOOL DISTRICT

confirm that the terms refer to distinct concepts. As the Sixth

Circuit observed in Cincinnati Bd. of Educ., 918 F.2d at 625,

“[h]ad Congress intended a prospective IEP to govern the

Act’s stayput provision, as opposed to an operational

placement, it could have employed the term ‘individualized

educational program’ which it had already defined.” By

using the term “placement,” not “Individualized Education

Program,” in the stay-put provision, the IDEA evidences the

intent not to tether the stay-put placement to a program

planned for the future.7Instead, the “then-current educational

placement of the child” is the educational program to which

the child was accustomed at the time a proposed new, neverimplemented program is under challenge.

B.

My reading of the statutory language and structure

reflects the role of the “stay-put” provision in the statutory

scheme.

7 Our precedents are not to the contrary. Some refer to an

implemented IEP as the touchstone for the “stay-put” requirement. But

those cases state only that the then-current educational placement “is

typically the placement described in the child’s most recentlyimplemented

IEP,” not that it always is. Johnson ex rel. Johnson v. Special Educ.

Hearing Office, 287 F.3d 1176, 1180 (9th Cir. 2002) (per curiam)

(emphasis added); see also L.M. v. Capistrano Unified Sch. Dist.,

556 F.3d 900, 911 (9th Cir. 2009). None of those cases held that the

child’s stay-put placement was an educational setting the child never

before experienced. See Johnson, 287 F.3d 1178–81; Capistrano,

556 F.3d 911–13; K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d 1110,

1117–21 (9th Cir. 2011); N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104,

1116 (9th Cir. 2010). Use of the shorthand term “last implemented IEP”

in that line of cases thus did not encompass situations in which a future

educational placement projected in an IEP never occurred.
N.E. V. SEATTLE SCHOOL DISTRICT 21

The IDEA was first enacted in 1975 in response to

evidence that disabled children were not receiving adequate

educational services and that many children were “excluded

entirely from the public school system and [would] not go

through the educational process with their peers.” Pub. L.

No. 94-142, § 3(b)(4), 89 Stat. 773, (1975) (codified at

20 U.S.C. § 1401 note (1976) (Congressional Findings).8 The

IDEA prevents the unnecessary exclusion of children with

special educational needs from the classrooms attended by

nondisabled children (“general education classrooms”), by

requiring that school districts provide to special needs

children the least restrictive education setting practical.

20 U.S.C. § 1412(a)(1), (5); Honig v. Doe, 484 U.S. 305,

309–11, 324, 325 n.8, 327 (1988), partially superseded by

statute on other grounds, Individuals with Disabilities

Education Act Amendments of 1997, Pub. L. No. 105-17,

§ 615(k), 111 Stat. 37 (1997). Toward that end, the IDEA

provides both a substantive guarantee that all children with

disabilities will receive a free appropriate public education,

20 U.S.C. § 1412(a)(1), and procedural safeguards to ensure

that result. Among those safeguards are provisions that

require meaningful parent participation in all aspects of the

child’s education, including the right to challenge in impartial

proceedings officialschool action. 20 U.S.C. § 1415(f)(1)(A);

see Honig, 484 U.S. at 312.

The statute’s stay-put provision complements both the

substantive concern with avoiding restrictive educational

environments if possible and the assurance that parents may

8 The Act was originally entitled the Education for All Handicapped

Children Act of 1975. It was amended in 1990 and renamed the

“Individuals with Disabilities Education Act.” Pub. L. No. 101-476,

104 Stat. 1103 (1990). I refer to both versions of the statute as “IDEA.”
22 N.E. V. SEATTLE SCHOOL DISTRICT

meaningfully participate in deciding on their children’s

educational placement. Enacted “to prevent school officials

from removing a child from the regular public school

classroom over the parents’ objection pending completion of

the review proceedings,” Sch. Comm. of Town of Burlington,

Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 373 (1985);

see also K.D., 665 F.3d at 1120, the stay-put provision

“meant to strip schools of the unilateral authority they had

traditionally employed to exclude disabled students,

particularly emotionally disturbed students . . . .” Honig,

484 U.S. at 323. By doing so, the stay-put requirement

eliminated the “heightened risk of irreparable harm inherent

in the premature removal of a disabled child to a potentially

inappropriate educational setting.” Joshua A. v. Rocklin

Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009). 

Tying the stay-put provision to an actual educational setting

experienced by the child – not a planned future placement

included in an IEP statement – avoids that result.

C.

Here, at the time N.E.’s parents brought their due process

challenge on September 9, 2015, the summer break was just

concluding, the 2015–16 school year was about to begin

(apparently that day), and the new school district had just

announced N.E.’s assignment for the coming year. In this

circumstance, the IDEA’s promise that parents can preserve

the status quo while challenging school district actions most

sensibly requires us to look for stay-put purposes to the

general education classroom (with accommodations).

The two other candidates for the “stay-put” benchmark

are the individual class, the stop-gap educational setting

agreed to by his parents and understood by all concerned as
N.E. V. SEATTLE SCHOOL DISTRICT 23

temporary or interim, and the Cascade Program, which N.E.

had never attended.

As to the first, the school district and N.E.’s parents

agreed that N.E. would be in the individual class for

approximately three weeks, to finish the school year. As both

parties now recognize, “[t]he policy behind [the stay-put

provision] supports an interpretation of ‘current educational

placement’ that excludes temporary placements . . . .”

Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 10 (1st Cir.

1999). Such placements do not reflect any considered

judgment, at any point, that the temporary placement is

suitable for the long-term educational development of the

child. In situations like this one, where the school district and

the child’s family do not agree to extend a temporary

placement, the stay-put provision requires placing the student

“in the last placement that the parents and the educational

authority agreed to be appropriate.” Id.

As to the Cascade Program, it was certainly not the “thencurrent educational placement” at the time N.E.’s parents

challenged the Seattle District’s proposed placement. N.E.

had never been taught in an isolated special education

classroom. To place him in one would fundamentally alter

his educational experience, without his parents’ consent and

before the proceedings designed to prevent the “heightened

risk of irreparable harm inherent in the premature removal of

a disabled child to a potentially inappropriate educational

setting,” Joshua A., 559 F.3d at 1040, could go forward.

The third alternative, placement in the general education

classroom with full-time paraeducator support, is the setting

in which N.E. received instruction for all but the last few

weeks of the prior school year, as well as in prior years. The
24 N.E. V. SEATTLE SCHOOL DISTRICT

May 2015 IEP identifies this setting and associated services

as N.E.’s “current placement at his neighborhood school.” 

Placing N.E. in that general education setting while his

parents bring their due process challenge would fulfill the

statutory “stay-put” purpose of ensuring that schools cannot

unilaterally exclude children from the general educational

setting. See Honig, 484 U.S. at 323. And it would provide

stability for N.E. in his educational experience, to the degree

possible given the change in school districts.

The alternative embraced by the majority – allowing

Seattle to move N.E. for the first time to a self-contained

classroom for emotionally and behaviorally disordered

children – would, in contrast, fundamentally disrupt N.E.’s

education. Yet, the challenge to the IEP, if successful, could

result in a second disruption, returning N.E. to the general

educational setting his parents seek. In the meantime, N.E.

would have been educated for a long period in an

inappropriate setting, in isolation from his peers. Section

1415(j) is designed to preclude precisely such disruption and

such potentially long term harm to students with disabilities.

III.

The majority disagrees with my application of the IDEA

“stay-put” requirement to this case. It does not contest that

“then-current educational placement” ordinarily refers to the

actual educational setting in which a student is enrolled. But

it insists that for several reasons, the usual understanding

does not apply here, and that, instead, the “stay-put” baseline

is the self-contained classroom setting which N.E. had never

actually experienced.
N.E. V. SEATTLE SCHOOL DISTRICT 25

First, the majority maintains that the May 2015 IEP

contained two stages, one of which was implemented, and

that the “then-current educational placement” therefore

became the never-implemented, longterm part of the IEP. 

Second, the majority sees significance in the timing of N.E.’s

parents due process challenge – during the summer break.

Maj. Op., pp. 7–8. Third, the majority indicates that N.E.’s

parents brought the stay-put problem on themselves by filing

their challenge to the Cascade Program when they did. 

Finally, the majority suggests that N.E.’s alleged disruptive

behavior in the spring of 2015 justified the transfer. None of

these circumstances supports the majority’s conclusion that

“a partially implemented, multi-stage IEP, as a whole, is a

student’s then-current educational placement,” and that the

self-contained classroom is therefore N.E.’s stay-put

placement. Maj. Op., p. 9. I take in turn each of the specific

circumstances of this case on which the majority relies.

A.

The majority characterizes the May 2015 IEP as a

partially implemented, multi-stage IEP. In fact, the May

2015 IEP proposed only one continuing placement, the selfcontained classroom program. On both the Prior Written

Notice and in the IEP, the district stated that it was proposing

a new placement for N.E. in the Cascade Program, a selfcontained classroom. The Prior Written Notice specifically

referred to the individual class as an “interim” setting and did

not propose the individual class as a new placement. Instead,

it noted that “to assist with [N.E.’s] transition to the cascade

program at the beginning of the year,” for the remainder of

the current school year N.E. “would receive 1:1 instruction

provided by a certificated teacher and supported by a

paraeducator in an interim setting at another elementary
26 N.E. V. SEATTLE SCHOOL DISTRICT

school.” The IEP itself included the three-week interim

program in the matrix of services, but it did not elsewhere

describe the program. All concerned parties understood the

individual classroom program to be a stop-gap measure that

was distinct from the placement proposal made at the May

IEP meeting. See pp. 15–16, supra. The manner in which

these documents present, and the participants in the IEP

decision understood, the two programs indicates that the

proposed placement was the self-contained program; the oneon-one setting was a temporary, agreed-upon measure to

close out the last weeks of the school year.

In the end, though, on my reading of the statute, the

dispute over whether the IEP is a two-stage educational

program or a one-stage, full-year program with a temporary,

stop-gap placement ultimately does not matter. The “stayput” provision, as I have explained, focuses not on what is

contained in the IEP document but on the child’s actual

educational experience.

Here, N.E. had never experienced the self-contained

classroom program the 2015 IEP proposed. A child cannot

“stay-put” in a program in which he never took part; the

“then-current educational placement” cannot be an

educational setting the child has never experienced. From the

child’s point of view, moving him to an entirely new kind of

educational experience, one that exists only on paper, is

precisely the sort of fundamental disruption the “stay-put”

provision was designed to prevent.

Moreover, permitting the school district to implement an

entirely new educational program while the parents are

properly challenging it allows the unilateral school district

decisionmaking the IDEA does not permit. “The preservation
N.E. V. SEATTLE SCHOOL DISTRICT 27

of the status quo [is meant to] ensure[] that the student

remains in the last placement that the parents and the

educational authority agreed to be appropriate.” Verhoeven,

207 F.3d at 10.

B.

Like the majority’s concern with the nature of the IEP, the

circumstance that the summer break intervened does not

require departure from the stay-put provision’s mandate to

preserve the status quo. Even if “we commonly think of

education as forward-looking,” Maj. Op., p. 11, the focus of

the stay-put requirement is static – to preserve an existing

educational placement until any challenge to a newly

proposed one is resolved. An entirely new, future placement,

never experienced by the child, is not what one would call the

“current” one in ordinary language; “current” suggests

continuity, not disruption.9 As between (1) the educational

placement in place at the time the IEP was devised and for the

entirety of N.E.’s prior education, and (2) an educational

program N.E. had never experienced, the former, most recent

one (except for the three-week stop gap) has to be the “thencurrent” one for purposes of a provision designed to preserve

the status quo and prevent disruption. Further, if school

districts could unilaterally and fundamentally change a

child’s educational placement over the summer break because

there is no “then-current” educational placement during that

period, the IDEA’s commitment to parental involvement in

devising educational programs for disabled children would be

severely undermined.

9 The majority notes that we might refer to a child who is about to

enter fifth grade as a “rising fifth grader.” But we do not refer to that child

as a “fifth grader,” precisely because they have not yet started fifth grade.
28 N.E. V. SEATTLE SCHOOL DISTRICT

C.

The majority also faults N.E.’s parents for filing their due

process challenge when they did, suggesting the result might

be different had the challenge been lodged earlier. But the

parents filed their challenge when they did for a practical

reason: N.E.’s parents did not know the Seattle School

District would propose the self-contained classroom

placement proposed by the Bellevue School District until the

IEP meeting on September 3.

Having moved from one district to another over the

summer, N.E.’s parents knew that the Seattle School District

would decide N.E.’s placement for the 2015–16 school year. 

The statute requires that “[a]t the beginning of each school

year, each local educational agency. . . shall have in effect,

for each child with a disability in the agency’s jurisdiction,

an individualized education program.” 20 U.S.C.

§ 1414(d)(2)(A).10 Given the Independent Educational

10 The statute also contains a section that deals with student transfers

between school districts that take place within an academic year. That

section provides: “In the case of a child with a disability who transfers

school districts within the same academic year, who enrolls in a new

school, and who had an IEP that was in effect in the same State, the local

educational agency shall provide such child with a free appropriate public

education, including services comparable to those described in the

previously held IEP, in consultation with the parents until such time as the

local educational agency adopts the previously held IEP or develops,

adopts, and implements a newIEP that is consistent with Federal and State

Law.” 20 U.S.C. § 1414(d)(2)(C). Since N.E. did not transfer districts

within the same academic year, this section does not govern his case. The

Seattle School District nonetheless described N.E.’s new proposed IEP as

a “Transfer Review” IEP, so it may have been under the impression that

this provision applied.Whether under § 1414(d)(2)(A) or § 1414(d)(2)(C),

it was clear to both school officials and N.E.’s parents that the Seattle
N.E. V. SEATTLE SCHOOL DISTRICT 29

Evaluation report and the psychologist’s letter recommending

against the self-contained classroom placement, N.E.’s

parents had good reason to anticipate that the Seattle School

District might not propose the self-contained classroom

placement in adopting the new IEP. A due process challenge

against the Seattle School District before September 1 would

have been premature.

The majority’s focus on the September 1 date is

misplaced for another reason. The Bellevue School District

listed September 1 on the May IEP as the start date for the

self-contained classroom placement, but the date did not

correspond to the actual start of the school year in Seattle. As

noted, school had not yet begun in Seattle on September 1. 

Because the stay-put provision requires attention to a child’s

actual educational experience, a projected start date in a

document should not obscure the on-the-ground reality.

The majority’s critique of the timing of N.E.’s parents’

due process challenge leads to untoward practical

consequences if accepted. The majority faults N.E.’s parents

for not challenging what they call “stage one” of the IEP, a

challenge which would have been meaningful only had it

been brought before that stage finished. But N.E.’s parents

agreed with the stage one placement, as an available interim

measure. There is nothing in the statute requiring parents to

object to a short, interim, emergency placement to which they

agree so that they can challenge a later, long-term, entirely

different, placement they oppose, while still benefitting from

IDEA’s stay-put provision.

School District had an obligation to adopt an IEP for N.E. for the

beginning of that school year.
30 N.E. V. SEATTLE SCHOOL DISTRICT

Moreover, under the majority’s reasoning, for the general

education setting to become the “stay-put” placement, N.E.’s

parents would have had to file their due process challenge

before stage one began. But it would have been impossible

for N.E.’s parents to do so here, as they did not receive the

statutorily-mandated prior written notice until a week or ten

days after N.E. began attending the interim individual class.11

That notice was the first time in which the interim, agreedupon setting and the self-contained classroomplacement were

bundled into a single IEP. Under the majority’s approach,

N.E.’s parents were effectively locked into both stages of the

IEP by the time they saw the IEP document.

Even assuming that the parents received sufficient notice

in the May meetings that the two programs would thereafter

be inextricably linked – and I do not think they did – it would

take some time for the parents to bring a due process

challenge. N.E. began attending the interim program only

two days after the IEP meeting. To bring a due process

challenge, parents must: find and contact a competent lawyer;

set up an appointment; discuss their options with the lawyer

and probably between themselves; draft and file a complaint;

and then assert their child’s stay-put right.

Indeed, even in a situation in which parents do receive

timely prior written notice of an IEP containing a short-term

interim placement and a new placement, it is quite possible

that they would not be able to file a complaint to challenge

11 The majority is correct that N.E.’s parents waived their argument

that the entire May 2015 IEP is invalid because they did not receive timely

prior written notice. That does not, however, change the fact that, given

the tardiness of the notice, N.E.’s parents could not have filed a challenge

and brought a stay-put motion before the stage one placement began.
N.E. V. SEATTLE SCHOOL DISTRICT 31

the IEP before the first stage is implemented. The statute

requires roughly ten days’ notice prior to implementation of

a proposed change. See Letter to Winston, 213 IDELR 102,

p. 3 (Office of Special Educ. Programs 1987). Filing a due

process complaint will likely often take more than ten days.

Under the majority’s rule, any time an emergency

placement is proposed for rapid implementation and is

attached to a longer placement in an IEP, the parents’ only

feasible option is to challenge both the interim and new

placement before the interim placement begins. Otherwise,

they will be stuck with implementation of the unacceptable

stage of the IEP while the challenge proceeds. And doing so

is likely to be difficult, given the time necessary to mount a

challenge.

D.

Finally, moving N.E. to a restrictive environment during

the pendency of the due process proceedings was not

necessary to address any concern about N.E.’s allegedly

aggressive and violent behavior. The IDEA provides

procedures for addressing behavioral problems and safety

concerns short of such unilateral action.

First, the Act provides that an IEP team “consider the use

of positive behavioral interventions and supports” when a

child’s behavior “impedes the child’s learning or that of

others.” 20 U.S.C. § 1414(d)(3)(B)(I). Next, when a child

with a disability violates a code of student conduct, the Act

authorizes school personnel to remove that child to an

alternative educational setting, or to suspend the student, for

up to 10 days, to the extent such discipline would be applied
32 N.E. V. SEATTLE SCHOOL DISTRICT

to children without disabilities. 20 U.S.C. § 1415(k)(1)(B).12

If, after school personnel remove a child from their current

placement pursuant to that authority, the IEP team determines

that the problem behavior is a manifestation of the child’s

disability, the Act directs the IEP team to “conduct a

functional behavioral assessment, and implement a behavioral

intervention plan,” or to review and modify an existing

behavioral intervention plan to address the child’s problem

behavior. Id. § 1415(k)(1)(F). Finally, school authorities can

remove a child with a disability to an alternative setting for

up to 45 days when that child has a weapon, possesses or uses

illegal drugs, or injures another person at school. Id.

§ 1415(k)(1)(G). If N.E.’s problem behavior recurred while

he was placed in a general education classroom, these

provisions would provide the Seattle School District with

lawful, effective means of addressing those problems and

preserving classroom safety.

* * * *

In short, although the circumstances of this case do

introduce some complexity into applying the IDEA’s stay-put

requirement, these circumstances do not change my

conclusion that N.E.’s stay-put placement is the general

educational setting with individual paraeducator support he

had experienced for almost all his student life.

IV.

The majority’s approach simply cannot be reconciled with

the text of the statute or its purposes. It confines N.E. to the

12 N.E.’s “emergency expulsion” before his temporary placement in

the individual class conformed with this statutory authorization.
N.E. V. SEATTLE SCHOOL DISTRICT 33

most restrictive placement contained in any of his IEPs,

removes him almost entirely from the general education

setting, and places him in a setting in which he was never

previously enrolled. The majority’s approach has the

practical potential broadly to preclude relief to parents and

their children with special educational needs. I respectfully

dissent.