NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0341n.06

Case No. 23-5704

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J.L., through his parents and guardians S.L. 

and M.L.; S.L.; M.L., 

Plaintiffs - Appellants,

v.

WILLIAMSON COUNTY, TENNESSEE,

BOARD OF EDUCATION,

Defendant - Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF TENNESSEE

OPINION

Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which THAPAR, J., joined. WHITE, 

J. (pp. 24–29), delivered a separate dissenting opinion.

JULIA SMITH GIBBONS, Circuit Judge. This case concerns whether J.L. has shown 

entitlement to a stay put injunction under the Individual with Disabilities Education Act (IDEA). 

The stay put provision mandates that, during the pendency of any due process proceedings 

conducted under the IDEA, “the child shall remain in the then-current educational placement” until 

resolution of the proceedings. 20 U.S.C. § 1415(j). J.L., a minor student with a qualifying 

emotional disability under the IDEA, who has a pending due process complaint against the 

Williamson County, Tennessee Board of Education (the “Board”), seeks a judicial determination 

that the stay put provision entitles him to stay put placement in Williamson County public schools

pursuant to his 2019 Individualized Education Program (“2019 IEP”). The Board disagrees, 

asserting first that the stay put provision does not apply to J.L., and second that if J.L. does have a 
No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ.

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stay put placement, it is homebound instruction pursuant to a prior settlement agreement between 

the parties. We hold that J.L. has failed to show entitlement to a stay put injunction. 

I.

A. 

The IDEA promises federal funds to states that agree to furnish a free appropriate public 

education, or FAPE, to children with certain physical or intellectual disabilities. See 20 U.S.C. 

§ 1400 et seq. At the time of the statute’s enactment in 1975, Congress recognized that children 

with disabilities faced widespread exclusion from public education. See Honig v. Doe, 484 U.S. 

305, 309 (1988). With the IDEA, Congress aimed to address the inadequate educational services 

offered to children with disabilities and combat their exclusion from public schools. See 20 U.S.C. 

§ 1400(d)(1)(A) (reflecting Congress’s goal “to ensure that all children with disabilities have 

available to them a free appropriate public education that emphasizes special education and related 

services designed to meet their unique needs”). 

A FAPE consists of both “special education and related services,” together, an instruction 

“specially designed” to address a child’s “unique needs” and the “supportive services” necessary 

to ensure that a child “benefit[s] from” his special education. Id. §§ 1401(9), (26), (29). When a 

state accepts funding under the IDEA, “[a]n eligible child . . . acquires a ‘substantive right’” to a 

FAPE. Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 158 (2017) (quoting Smith v. Robinson, 468 

U.S. 992, 1010 (1984)).

The IDEA contemplates that children with a wide array of impairments—including, as 

relevant here, “serious emotional disturbance[s],” 20 U.S.C. § 1401(3)(A)(i)—will receive a FAPE 

in the least restrictive environment, or LRE. Id. § 1412(a)(5). The LRE is the educational setting 

that, “[t]o the maximum extent appropriate,” educates children with disabilities alongside 
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non-disabled children, removing such children from the general education setting “only when the 

nature or severity of [a child’s disability] is such that education in regular classes . . . cannot be 

achieved satisfactorily.” Id. § 1412(a)(5)(A). In imposing the LRE requirement, Congress 

exercised its policymaking prerogative to underscore the importance of incorporating children with 

disabilities into regular education classes wherever possible.

The “primary vehicle” for implementing a FAPE is the individualized educational 

program, or IEP. Honig, 484 U.S. at 311; see also 20 U.S.C. § 1412(a)(4), 1414(d)(2). Developed 

by a child’s “IEP Team,” a collection of parents, teachers, and school officials, the IEP is a “written 

statement” that identifies the child’s particular educational needs, sets measurable goals for the 

child’s progress, creates a plan for meeting those goals, and outlines the supplementary aids and 

services the child needs to meet those goals. Id. §§ 1414(d)(1)(A), (B). The IEP Team develops 

a child’s IEP by considering the child’s strengths, the parents’ concerns, the results of the child’s 

initial or most recent evaluation, and the child’s academic, developmental, and functional needs. 

Id. § 1414(d)(3)(A). The IEP Team must review a child’s IEP at least annually. Id.

§ 1414(d)(4)(A)(i). IEPs, moreover, are effective only for set periods—a school year or semester, 

for example. This limited duration makes sense; young children develop quickly, and changing 

needs often require different educational environments. Usually, the same team that developed 

the original IEP cooperates to establish the next one. See 34 C.F.R. § 300.116.

The IDEA also establishes various procedural safeguards “to guarantee parents both an 

opportunity for meaningful input into all decisions affecting their child’s education,” including 

input into the IEP, “and the right to seek review of any decisions they think inappropriate.” Honig, 

484 U.S. at 311–12; see generally 20 U.S.C. § 1415. These procedural safeguards include the 

parents’ right to examine their child’s records and participate in meetings concerning their child’s 
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education, id. § 1415(b)(1), to receive prior written notice about any change in the child’s 

identification, evaluation, educational placement, or FAPE, id. § 1415(b)(3), and to file an 

administrative due process complaint relating to the child’s identification, evaluation, educational 

placement, or FAPE, id. § 1415(b)(6). Filing a due process complaint triggers the opportunity for 

an impartial due process hearing, conducted by the state or local educational agency, id. 

§ 1415(f)(1)(A), which results in a final decision appealable to state or federal court. Id.

§ 1415(i)(2)(A).

IDEA’s stay put provision is one of the procedural safeguards afforded upon the initiation 

of a due process complaint. Section 1415(j) of the Act, “Maintenance of current educational 

placement,” states that “during the pendency of any proceedings conducted pursuant to this 

section, unless the State or local educational agency and the parents otherwise agree, the child 

shall remain in the then-current educational placement of the child[.]” Id. § 1415(j) (emphasis 

added). The provision represents Congress’s policy determination that “regardless of whether 

their case is meritorious or not,” children with disabilities must remain in their then-current 

educational placement until the dispute is resolved. Drinker ex rel. Drinker v. Colonial Sch. Dist., 

78 F.3d 859, 864 (3d Cir. 1996).

B. 

Plaintiff J.L. is a fourteen-year-old student living in Williamson County, Tennessee. Since 

preschool, J.L. has qualified as a student with a disability under the IDEA. J.L.’s qualifying 

disability, based on diagnoses of Disruptive Mood Dysregulation Disorder (“DMDD”) and 

Attention Deficit Hyperactive Disorder (“ADHD”), is “emotional disturbance.”

J.L.’s formal schooling began in Williamson County’s public schools, and from second 

through fourth grade, J.L. attended Bethesda Elementary. J.L.’s last-implemented IEP, drafted in 
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anticipation of his fourth grade (2019-20) school year, reflects this placement. J.L.’s 2019 IEP 

dictated that he would receive schooling in both the general and special education settings, with 

behavioral supports accompanying him when he was among non-disabled students. The IEP also 

set forth an assessment of J.L.’s “present levels of performance” across several academic and 

behavioral metrics and his goals, benchmarks, and objectives for the fall 2019 semester. DE 5-3, 

2019 IEP, Page ID 365–77. Reflecting the findings of both his educators and his medical 

professionals, J.L.’s 2019 IEP described his social and emotional behavior in the general education 

setting as “escalating.” Id. at 371; see also DE 1, Compl., Page ID 5 (admitting J.L.’s “history of 

episodes of aggression, hitting, running [i.e., eloping], and verbal outbursts” at school). 

Specifically, the IEP described “verbal and physical outburst[s],” including kicking furniture and 

throwing chairs and other items. DE 5-3, 2019 IEP, Page ID 371.

In October 2019, J.L.’s physical aggression and elopement from school led the Board to 

propose a new IEP, which would have placed J.L. in a publicly-funded therapeutic classroom 

designed to provide “a wrap-around approach [that] decrease[d] significant problem behaviors, 

with the goal of transitioning [J.L.] back to a less restrictive setting.” DE 5-12, ALJ Order, Page 

ID 394. Disagreements over this proposed placement, however, led J.L.’s parents to file an IDEA 

due process complaint. And while that due process action was pending, J.L.’s problem behaviors 

escalated. In the spring of 2020, the Board therefore filed a due process action of its own, seeking 

J.L.’s immediate removal from the general education setting under 20 U.S.C. § 1415(k)(3). The 

district sought J.L.’s removal, a remedy known as a Honig injunction, due to the substantial 

likelihood that J.L.’s behavior would injure himself and others. In its complaint, the Board 

described escalating behavior in early 2020, alleging that J.L. had injured Bethesda Elementary 

teachers and staff, destroyed a laptop, and eloped off school property. 
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In June 2020, the parties reached a settlement agreement (the “2020 Honig Settlement”) 

that resolved the Board’s due process proceeding in its entirety. J.L.’s parents agreed to place J.L. 

in a homebound setting, and the Board agreed to provide publicly-funded instruction there for 

three hours a week. While the 2020 Honig Settlement did not resolve the merits of J.L.’s due 

process action, the parties agreed that J.L.’s homebound placement “resolve[d] the issues between 

them” concerning J.L.’s stay put rights for the duration of his due process suit. DE 5-6, 2020 

Honig Settlement, Page ID 75.

In the fall of 2020, J.L.’s parents identified a private school, Robson Academy, for J.L.’s 

continued education. The parties settled J.L.’s 2019 due process complaint, and the Board agreed 

to reimburse J.L.’s parents for expenses arising from his attendance at Robson, a common 

approach under the IDEA. See 20 U.S.C. § 1412(a)(10)(B)(i); 34 C.F.R. § 300.325(c). But unlike 

their earlier Honig Settlement, the parties expressly disclaimed any notion that their “Robson 

Agreement” created a stay put placement under the IDEA. 

J.L.’s tenure at Robson was short-lived, marked by “flipping tables, ripping paper, 

swearing, fleeing [the] classroom and hitting the teachers.” DE 8-7, Proposed 2021 IEP, Page ID 

245. In the spring of 2021, after attempting to work with J.L., Robson Academy decided that J.L. 

was no longer welcome. J.L.’s parents then enrolled him in an online homeschool program for the 

remainder of 2020-21 school year.

In August 2021, J.L.’s parents hoped to re-enroll J.L. in the Williamson County public 

school system. In anticipation of J.L.’s re-enrollment, the parties attended a series of IEP Team 

meetings that month, but they could not devise a mutually agreeable approach to J.L.’s education. 

So on August 18, 2021, J.L. filed a second due process complaint, and J.L. was homeschooled for 

the duration of the 2021-22 school year. 
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J.L.’s parents voluntarily withdrew their second due process complaint in March 2022, and 

at the beginning of the 2022-23 school year, J.L.’s parents enrolled J.L. at a second private school, 

Galileo Academy. By November 2022, however, J.L.’s parents had withdrawn him from Galileo. 

And in December 2022, J.L.’s parents attempted to enroll J.L. in the Williamson County public 

school system once more. J.L.’s IEP Team again convened and again failed to reach a mutually 

agreeable approach to his schooling. So in March 2023, J.L.’s parents filed a third due process 

complaint, the basis of this appeal before us, alleging that the Board’s plan denies J.L. a free 

appropriate public education in the least restrictive environment.

The matter went to a hearing before a Tennessee Department of Education ALJ, who found 

in favor of the Board on J.L.’s claims. Although her decision on the merits rendered J.L.’s stay 

put rights moot, the ALJ’s order nonetheless discussed, and rejected, J.L.’s contention that he had

stay put rights to placement within the general education setting of a Williamson County public 

school. Dismissing J.L.’s argument as “illogical,” the ALJ found that J.L.’s 2019 IEP placement 

at Bethesda Elementary could not serve as a basis for stay put rights where J.L. had since graduated 

from elementary to middle school and where J.L.’s parents had “unilaterally placed him in a private 

school . . . immediately prior to re-enrolling him with [Williamson County Schools].” DE 5-12, 

ALJ Order, Page ID 161–62. This latter action, the ALJ further found, constituted a waiver of 

J.L.’s stay put rights.

J.L. filed a complaint in federal district court challenging the ALJ’s order. He then moved 

for a temporary restraining order and preliminary injunction to “enforce” his stay put rights by 

mandating his return to the regular education classroom with his peers. See DE 5, Mot. TRO and 
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Prelim. Inj., Page ID 27–28. The district court denied the initial motion and J.L.’s subsequent 

motion for reconsideration of that order. J.L. timely appealed both denials.1

J.L. then filed with this court a motion for stay put injunction pending appeal. The motions 

panel denied it, holding that J.L. had not shown likelihood of success on the merits and that the 

balance of the remaining injunction factors weighed against granting injunctive relief.

II. 

The unique nature of a stay put injunction under 20 U.S.C. § 1415(j) necessitates that we 

review de novo. Stay put under § 1415(j) functions as an automatic statutory injunction once the 

plaintiff has made its two-factor showing—(1) a “proceeding[] conducted pursuant to” 20 U.S.C. 

§ 1415 is “pend[ing],” and (2) the child has a “then-current educational placement” in which he 

must remain. See id. § 1415(j); Davis ex rel. Davis v. District of Columbia, 80 F.4th 321, 324 

(D.C. Cir. 2023) (“A parent is entitled to stay-put relief under § 1415(j) ‘upon a two-factor showing 

that (i) an administrative due process proceeding is pending, and (ii) the local educational agency 

is attempting to alter the student’s then-current educational placement.’ . . . If the two preconditions 

are met, the stay-put provision functions as an automatic statutory injunction[.]” (quoting OluCole v. E.L. Haynes Pub. Charter Sch., 930 F.3d 519, 527 (D.C. Cir. 2019)); S.C. ex rel. K.G. v. 

Lincoln Cnty. Sch. Dist., 16 F.4th 587, 589 (9th Cir. 2021) (“Stay put functions as an automatic 

preliminary injunction, and the moving party need not show the traditionally required preliminary 

injunction factors to obtain relief.” (quoting Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 

1037 (9th Cir. 2009) (internal quotations omitted)); Olu-Cole, 930 F.3d at 527–28 (“[O]nce OluCole’s motion for a preliminary injunction demonstrated that the two statutorily required factors 

1 This court has jurisdiction to review the district court’s interlocutory order denying J.L.’s motion for a 

temporary restraining order and preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). See Overstreet 

v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566, 572 (6th Cir. 2002). 
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were met, there was a paradigm shift. Stay put locked in [the child’s] educational status quo, and 

the party that needed injunctive relief was the School seeking to derail the statute’s ordinary 

operation.”); Light v. Parkway C-2 Sch. Dist., 41 F.3d 1223, 1227 (8th Cir. 1994) (noting that it is 

the local educational agency’s task to “overcome the automatic stay-put injunction”); see also

Honig v. Doe, 484 U.S. 305, 326 (1988) (noting the Ninth Circuit interpreted the stay put provision 

as an automatic injunction); Hatikvah Int’l Acad. Charter Sch. v. E. Brunswick Twp. Bd. of Educ., 

10 F.4th 215, 218 (3d Cir. 2021) (automatic preliminary injunction); Tina M. v. St. Tammany 

Parish Sch. Bd., 816 F.3d 57, 60 (5th Cir. 2016) (same); CP v. Leon Cnty. Sch. Bd. Fla., 483 F.3d 

1151, 1156 (11th Cir. 2007) (same); Wagner v. Bd. of Educ. Montgomery Cnty., 335 F.3d 297, 301 

(4th Cir. 2003) (same); Casey K. ex rel. Norman K. v. St. Anne Cmty. High Sch. Dist. No. 302, 400 

F.3d 508, 511 (7th Cir. 2005) (Posner, J.) (“The stay-put provision has been interpreted as 

imposing an automatic statutory injunction[.]”). The school district may attack either or both of 

these factors. 

Here, one of those two factors—J.L.’s “then-current educational placement”—is the sole

question of this appeal. This is an issue of statutory interpretation that we review de novo.2 N.W. 

ex rel. J.W. v. Boone Cnty. Bd. of Educ., 763 F.3d 611, 615 (6th Cir. 2014).

2 Our sister circuits agree that the application of stay put to a set of facts is reviewed de novo. See, e.g., 

Davis ex rel. Davis v. District of Columbia, 80 F.4th 321, 326 (D.C. Cir. 2023) (“This court reviews . . . de 

novo a district court’s interpretation of the IDEA.”); Hatikvah Int’l Acad. Charter Sch. v. E. Brunswick 

Twp. Bd. of Educ., 10 F.4th 215, 218 (3d Cir. 2021) (“We review de novo the application of the stay-put 

rule to a given set of facts.”); E.E. ex rel. Hutchinson-Escobedo v. Norris Sch. Dist., 4 F.4th 866, 871 (9th 

Cir. 2021) (reviewing a district court’s preliminary injunction order on the student’s stay put placement for 

abuse of discretion, but reviewing the district court’s interpretation of the underlying legal principles de 

novo); Ventura de Paulino v. N.Y. City Dep’t of Educ., 959 F.3d 519, 529 (2d Cir. 2020) (applying de novo 

review to “questions of law decided in connection with requests for preliminary injunction[]” (internal 

citation omitted)); Wagner v. Bd. of Educ. Montgomery Cnty., 335 F.3d 297, 301 (4th Cir. 2003) (“While 

we normally review the grant of preliminary injunctive relief for abuse of discretion, we review the district 

court’s interpretation of IDEA de novo.”); Hale ex rel. Hale v. Poplar Bluffs R-I Sch. Dist., 280 F.3d 831,

834 (8th Cir. 2002) (applying de novo review to district court’s stay put ruling); Verhoeven v. Brunswick 
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III.

The IDEA does not define the term “then-current educational placement.” But Honig v. 

Doe, though it explored a different question than presented here, gives some 

near-contemporaneous insight into the term. 484 U.S. at 323–28. In Honig, the Supreme Court

explained that the stay put provision’s language is “unequivocal” and states its directive “plainly.” 

484 U.S. at 323. Consistent with the IDEA’s overarching goal of combatting the states’ failure to 

provide disabled children with an appropriate education, the Honig Court found that an animating 

purpose of the stay put provision was to “strip schools of the unilateral authority they had 

traditionally employed to exclude disabled students, particularly emotionally disturbed students, 

from school.” Id. at 323, 327 (emphasis in original). 

In other words, the stay put provision prohibits schools from unilaterally removing the 

child or changing his educational placement, over the parent’s objection, until the completion of 

the underlying IDEA litigation. See id. at 324; see also Tenn. Dep’t of Mental Health and Mental 

Retardation v. Paul B., 88 F.3d 1466, 1472 (6th Cir. 1996). But Honig’s analysis of the provision 

is a narrow one, as it considered only whether the stay put provision included an implicit exception 

for schools to remove “dangerous” students. Honig did not define any statutory terms or engage 

in a broader analysis of the provision. And while preventing unilateral removal of a student by 

school officials is indeed one goal of stay put, it is not the provision’s sole purpose. Honig, 484 

U.S. at 327; see also M.R. v. Ridley Sch. Dist., 744 F.3d 112, 127 (3d Cir. 2014) (“The Supreme 

Court has not declared protection from unilateral action by school officials to be the only purpose 

of the stay-put provision.”) (emphasis in original). 

Sch. Comm., 207 F.3d 1, 5 (1st Cir. 1999) (explaining that the determination of educational placement under 

§ 1415(j) is reviewed de novo). 
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Where Honig acknowledged the limitations stay put places on state action, Schaffer ex rel. 

Schaffer v. Weast acknowledged the limitations that stay put places on parental action. 546 U.S. 

49 (2005). In discussing the stay put provision, the Schaffer Court found that although “Congress 

could have required that a child be given the educational placement that a parent requested during 

a dispute, . . . it did no such thing.” Id. at 59–60. So while schools lack unilateral authority to 

remove students per Honig, parents similarly lack unilateral authority to create the stay put

placement of their choice under Schaffer. Dissenting from the Schaffer majority, Justice Ginsburg 

nonetheless agreed with this conclusion, writing that stay put “merely preserves the status quo”

and does not create an affirmative remedy. Id. at 64 n.1 (Ginsburg, J., dissenting). In the context 

of reimbursement for private education, the Court has further held that “parents who unilaterally 

change their child’s placement during the pendency of [IDEA] review proceedings, without the 

consent of state or local school officials, do so at their own financial risk.” Sch. Comm. Burlington, 

471 U.S at 373–74. Such parents, the Court held, will only receive reimbursement if a court 

concludes both that the public placement violated the IDEA and that the private placement was 

proper. Id.; Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15 (1993). All 

told, the Court’s precedent, while not precisely defining the stay put provision, has noted the 

limitations that neither the school nor the parents can create a stay put placement unilaterally. 

Lacking a statutory definition of “then-current educational placement,” a previous panel of 

this court assigned the phrase its plain meaning and held that the term “connotes preservation of 

the status quo” and thus “refers to the operative placement actually functioning at the time the 

dispute first arises.” Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625–26 (6th Cir. 1990). 

And because an IEP had been created but not implemented for the plaintiff in that suit, the panel 
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deemed five hours of home education per week—the operative placement actually functioning at 

the time the dispute arose—to be the “then current educational placement,” not the IEP. Id. at 626. 

Twenty-four years later, a subsequent panel abrogated Thomas’s definition of “then current 

educational placement” when it recognized that the Department of Education had defined 

“placement” in its regulations since Thomas was decided. N.W., 763 F.3d at 617. In N.W., the 

plaintiff parents became dissatisfied with N.W.’s IEP-dictated school, St. Rita’s, and unilaterally 

placed him at another private school, Applied Behavioral Sciences. Id. at 613. The parties later 

disagreed about whether the school district’s plan to transition N.W. into the district’s public 

schools provided a FAPE, and the parties litigated the issue, simultaneously seeking to define 

N.W.’s stay put rights. Id. at 613–14. 

Quoting from the Department of Education’s regulations, the N.W. panel held that a 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.” Id. at 617 (quoting 34 C.F.R. § 300.116(b)). The panel 

further noted that the “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; and . . . [i]s made in conformity with the LRE provisions.” Id. (quoting 34 

C.F.R. § 300.116(a)). Implicit in these definitions, the N.W. panel held, was a requirement that a 

school district approve of an educational setting before it can serve as a child’s “placement.” Id.

And based on that requirement, the panel went on, N.W.’s educational placement could not be

Applied Behavioral Services, a school unilaterally chosen by N.W.’s parents. Id. N.W. countered

that it was “logically dubious” for N.W.’s stay put placement to be a public school that N.W. had 

never attended. Id. at 618. But the panel avoided this pitfall, responding that N.W.’s placement 

was “the last agreed-upon school that N.W. attended: St. Rita’s.” Id.
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The N.W. panel was correct that agreement from both the parents and the local educational 

agency is necessary for the stay put provision to apply to a placement, given the principles of 

Honig and Schaffer. Still, N.W. misses one component—timing. N.W. overlooked the “cardinal 

rule that a statute is to be read as a whole, since the meaning of statutory language, plain or not, 

depends on context.” King v. St. Vincent’s Hosp., 502 U.S. 215, 220 (1991) (internal citations 

omitted). N.W. focuses too narrowly on “placement,” bypassing the words surrounding it—“the 

child shall remain in the then-current educational placement.” 20 U.S.C. § 1415(j) (emphasis 

added); see also Fed. Commc’n Comm’n v. AT&T Inc., 562 U.S. 397, 406 (2011) (“[W]hen 

interpreting a statute, we construe language in light of the terms surrounding it.”) (cleaned up). 

“Remain” connotes preservation of the status quo; to “remain” is to “continue unchanged.” 

Merriam-Webster Online, https://www.merriam-webster.com/dictionary/remain (last accessed 

July 31, 2024); see also Schaffer, 546 U.S. at 64 n.1 (Ginsburg, J., dissenting); Olu-Cole, 930 F.3d 

at 320; Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 3 (1st Cir. 1999). “Then-current” also 

connotes preservation of the status quo; the child is to “remain” in the educational placement that 

was “current” “then” — i.e., when the due process proceeding was initiated. See Rena C. v. 

Colonial Sch. Dist., 890 F.3d 404, 415 (3d Cir. 2018), cert. denied, 139 S. Ct. 244 (2018). The 

provision’s title—“Maintenance of current educational placement”—also reflects this emphasis 

on both the child’s present educational situation and the preservation of the status quo. See Grand 

Trunk Western R.R. Co. v. U.S. Dep’t of Labor, 875 F.3d 821, 826 n.6 (6th Cir. 2017) (“While the 

title of a statute and the heading of a section cannot limit the plain meaning of the text,’ they can 

‘assist in clarifying ambiguity.’” (first quoting Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. 

Co., 331 U.S. 519, 528–29 (1947), second quoting Minn. Transp. Reg. Bd. v. United States, 966 

F.2d 335, 339 (8th Cir. 1992)). 
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The provision’s legislative history further supports this interpretation. Congress, in 

enacting the provision, noted that “language is also adopted to require that during the pendency of 

any administrative or judicial proceedings regarding a complaint . . . the child involved in the 

complaint shall remain in his or her present educational placement.” H.R. Rep. No. 94-664, at 48–

50 (1975) (emphasis added); S. Rep. No. 94-455, at 48–50 (1975) (same). This evidences 

Congress’s intent that “then-current” means “present,” i.e., “now existing or in progress.” See 

Merriam-Webster Online, https://www.merriam-webster.com/dictionary/present (last accessed 

July 31, 2024). 

Our sister circuits that have considered the meaning of “then-current educational 

placement” vary slightly in their interpretations.3 But a few principles are clear. First, agreement 

3 For example, the First Circuit interprets it to mean “the last placement that the parents and the educational 

authority agreed to be appropriate.” Doe v. Portland Pub. Schs., 30 F.4th 85, 91 (1st Cir. 2022). The 

Second Circuit has a similar definition: The stay put provision “typically refers to the child’s last agreedupon educational program before the parent requested a due process hearing to challenge the child’s IEP.” 

Venture de Paulino v. N.Y. City Dep’t of Educ., 959 F.3d 519, 532 (2d Cir. 2020). The Second Circuit also 

provides three factors to consider in determining a child’s then-current educational placement: “(1) the 

placement described in the child’s most recently implemented IEP; (2) the operative placement actually 

functioning at the time when the stay put provision of the IDEA was invoked; or (3) the placement at the 

time of the previously implemented IEP.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) 

(quoting Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d 

Cir. 2004) (internal quotations omitted). The Third Circuit has explained that “the dispositive factor in 

deciding a child’s current educational placement should be the [IEP] actually functioning when the stay put 

is invoked.” Rena C., 890 F.3d at 415 (quoting Drinker, 78 F.3d at 867) (internal quotations omitted). In 

other words, the operative placement is determined by “the date the dispute between the parents and the 

school district ‘first arises’ and proceedings conducted pursuant to the IDEA begin.” M.R., 744 F.3d at 124 

(quoting Drinker, 78 F.3d at 867). Similarly, the Ninth Circuit has interpreted the ordinary meaning of the 

phrase to be “‘the educational setting in which the student is actually enrolled at the time the parents request 

a due process hearing,’ and it ‘is typically the placement described in the child’s most recently implemented 

IEP.’” E.E. ex rel. Hutchison-Escobedo v. Norris Sch. Dist., 4 F.4th 866, 871–72 (9th Cir. 2021) (first 

quoting N.E. ex rel. C.E. v. Seattle Sch. Dist., 842 F.3d 1093, 1096 (9th Cir. 2016), and then quoting Johnson 

ex rel. Johnson v. Special Educ. Hearing Off., 287 F.3d 1176, 1180 (9th Cir. 2002)). The Seventh Circuit, 

on the other hand, uses a more “fact-driven approach,” defining the parameters of educational placement 

as “something more than the actual school attended by the child and something less than the child’s ultimate 

educational goals.” Bd. of Educ. of Cmty. High Sch. Dist. No. 218, Cook Cnty., Ill. v. Ill. State Bd. of Educ., 

103 F.3d 545, 549 (7th Cir. 1996). 
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between the parents and local educational agency is a critical component of the “then-current 

educational placement”—a placement cannot be unilateral. See, e.g., Doe v. Portland Pub. Schs., 

30 F.4th 85, 91 (1st Cir. 2022); Venture de Paulino v. N.Y. City Dep’t of Educ., 959 F.3d 519, 532 

(2d Cir. 2020); see also Wagner, 335 F.3d at 301; Digre v. Roseville Schs. Indep. Dist. No. 623, 

841 F.2d 245, 250 (8th Cir. 1988). This tracks Honig’s evaluation that the stay put provision 

prevents unilateral action by schools and Schaffer’s evaluation that it prevents unilateral decisions 

by parents. See Honig, 484 U.S. at 323; Schaffer, 546 U.S. at 59–60. Second, the last-implemented 

IEP is relevant to the determination. See, e.g., Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 

(2d Cir. 2015); Rena C., 890 F.3d at 415; E.E. ex rel. Hutchison-Escobedo v. Norris Sch. Dist., 4 

F.4th 866, 872 (9th Cir. 2021). This tracks the regulations defining placement. See 34 C.F.R. § 

300.116(b). Third, timing is critical. Some circuits define the relevant juncture as the moment

when a due process complaint is filed, see, e.g., Rena C., 890 F.3d at 415; E.E., 4 F.4th at 872, 

while others point to the last agreed-upon placement before the dispute arose, see, e.g., Doe v. 

Portland, 30 F.4th at 91; Venture de Paulino, 959 F.3d at 532. This tracks the statutory text’s 

references to timing. See 20 U.S.C. § 1415(j) (mandating that the child shall “remain in the thencurrent educational placement”) (emphasis added). While this timing distinction in our sister 

circuit’s case law is typically immaterial, the distinction matters here, where the last agreed-upon 

placement is not the same one that was actually functioning at the time J.L.’s parents brought the 

due process complaint.

The Board argues J.L. has failed to show entitlement to a stay put injunction, because at 

the time of the due process filing, he had no “then-current educational placement” to “remain” in. 

See CA6 R. 21, Appellee Br., at 12–16. This is because J.L.’s parents unilaterally changed his 

educational placement from the homebound instruction that the parties agreed on. Id. at 12. J.L. 
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argues in response that parents do not forfeit their rights by acting unilaterally and choosing a 

placement without the local educational agency’s agreement. See CA6 R. 24, Appellant Reply 

Br., at 2–8. The motions panel, in considering these arguments, “avoid[ed]” the Board’s position, 

as it found that the Board’s “arguments that stay-put placement ‘no longer applies’ debatable at 

this stage in light of the precedent on which it relies.” CA6 R. 18, Order, at 4, 6. 

Indeed, Sixth Circuit precedent is at best murky on this question. No Sixth Circuit case 

has found that a plaintiff failed to show entitlement to a stay put injunction. N.W. gives mixed 

signals on the question. N.W. began its discussion of stay put with the section title, “The IDEA’s 

‘Stay-Put’ Provision Does Not Apply to N.W.,” seeming to indicate the possibility that a plaintiff 

may fail to prove entitlement to a stay put injunction. 763 F.3d at 616. But then, in responding to 

N.W.’s counterarguments, the court stated that N.W.’s placement for purposes of the stay put 

provision was St. Rita’s, the last agreed-upon school that N.W. attended. Id. at 618. Then, the 

conclusion doubled back, stating that “N.W. does not qualify for stay-put protection . . . because 

his parents unilaterally enrolled him in ABS without the District’s approval.” Id.

And the other cases that the Board relies on—Stockton ex rel. Stockton v. Barbour County 

Board of Education, 884 F. Supp. 201 (N.D.W. Va. 1995), and Michael C. ex rel. Stephen C. v. 

Radnor Township School District, 202 F.3d 642 (3d Cir. 2000)—are distinguishable for the 

reasons identified by the motions panel. Stockton’s statement that the child had no current 

educational placement was undermined by its conclusion that stay put applied to the private school 

he unilaterally enrolled in. Stockton, 884 F. Supp. at 206–07. Indeed, that conclusion actually 

conflicts with the universal principle among the circuits and the IDEA that a placement requires 

agreement from both the parents and the local educational agency. And Michael C. dealt with an 
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interstate move prior to Congress’s amendment of the IDEA providing specific procedures for 

interstate transfers. See Michael C., 202 F.3d at 646–47, 649–52; 20 U.S.C. § 1414(d)(2)(C)(i)(II). 

It is rare (but not entirely unheard of) for a court to find that a plaintiff has failed to prove 

entitlement to a stay put injunction. The Ninth Circuit has held in one case that stay put rights did 

not attach to a child whose parents unilaterally chose a private program. L.M. v. Capistrano 

Unified Sch. Dist., 556 F.3d 900, 911 (9th Cir. 2009). But that case differs from J.L.’s because the 

child never had an implemented IEP, and the child was making his initial application to attend a 

public school. See id. Similarly, the D.C. Circuit has also held that the stay put provision did not 

apply to the facts of a particular child’s case, but that was because the District of Columbia was 

unable to provide an appropriate placement due to factors outside of its control. Davis, 80 F.4th 

at 327. 

While it is rare to find that a plaintiff has failed to show entitlement to a stay put injunction, 

this is a rare case. The ‘typical’ case occurs when “a school district attempts to change a student’s 

placement, the student objects to the change by filing an administrative complaint, and stay put 

mandates the placement until the dispute ends.” A.D. ex rel. L.D. v. Hawaii Dep’t of Educ., 727 

F.3d 911, 914 (9th Cir. 2013). On the other hand, here, J.L. has failed to demonstrate that he has 

a “then-current educational placement” to remain in. 

The statutory provision, applied to J.L.’s case, requires that during the pendency of the 

most recent due process proceeding, filed on March 2, 2023, J.L. “shall remain in [his] then-current 

educational placement.” See 20 U.S.C. § 1415(j); DE 5-10, DP Compl. 07.03-231153J, Page ID 

413–21. But at the time J.L.’s parents filed the March 2023 due process proceeding, J.L. attended 

neither a Williamson County school nor a private school. If our sister circuits are correct in their 

interpretation of the stay put provision as implementing the educational placement actually 
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functioning when the due process complaint is filed, see, e.g., Rena C., 890 F.3d at 415; E.E., 4 

F.4th at 872, there is none here: There was no agreed-upon educational placement actually 

functioning when J.L. filed his due process complaint. Moreover, even if “educational placement”

means the “last agreed-upon school that [J.L.] attended,” as N.W. implies, that placement—either 

homebound under the 2020 Honig Settlement or in the general educational setting under the 2019 

IEP—was not “current” “then,” at the time of the due process complaint filing. See N.W., 763 

F.3d at 618. The 2019 IEP, by its terms, expired on December 3, 2019. J.L. has not attended a 

Williamson County public school since that time. And while J.L.’s parents and the Board created 

a stay put placement via the 2020 Honig Settlement,4that placement is also no longer effective, as 

it expired by its terms with the Robson Agreement.

Applying the policy of the stay put provision is similarly unsatisfactory. The stay put 

provision, above all, intends to preserve the status quo. See Schaffer, 546 U.S. at 64 n.1 (Ginsburg, 

J., dissenting); C.K. ex rel. Bd. of Educ. of Sylvania City Sch. Dist., 2022 WL 4116491, at *25 (6th 

Cir. 2022) (quoting Doe v. East Lyme, 790 F.3d at 453); Thomas, 918 F.2d at 625–26; Davis, 80 

F.4th at 329; Olu-Cole, 930 F.3d at 524; Doe v. Portland, 30 F.4th at 91 (quoting Verhoeven, 207 

F.3d at 3); Rena C., 890 F.3d at 415 (quoting Drinker, 78 F.3d at 867); M.R., 744 F.3d at 118. As 

4 The Honig settlement agreement unambiguously anticipated its use as a stay put placement. See 20 U.S.C. 

§ 1415(j) (creating an exception to the stay put provision when “the State or local educational agency and 

the parents otherwise agree”); N.W., 763 F.3d at 618 (implicitly recognizing that a resolution in a settlement 

agreement can create an operative stay put placement); see also K.D. ex rel. C.L. v. Dep’t of Educ., Hawaii, 

665 F.3d 1110, 1119 (9th Cir. 2011) (implicitly recognizing that a settlement agreement could create a stay 

put placement); Casey K., 400 F.3d at 512 (same); Verhoeven, 207 F.3d at 10 (same). The Honig settlement 

explicitly stated that it resolved the Board’s March 6, 2020, due process complaint, and that it “[did] not 

apply” to J.L.’s November 3, 2019, due process complaint, “except as to its stay-put injunction.” DE 5-6, 

2020 Honig Settlement, Page ID 75. The agreement went on to clarify that it “resolves the issues between 

[the parties] concerning the stay-put placement of J.L. during the pendency of the due process matter” 

created by J.L.’s November 3, 2019, due process complaint. Id. By explicitly agreeing in the 2020 Honig 

Settlement to “resolve the issues between them concerning the stay-put placement of J.L.,” J.L. and the 

Board created a stay put placement. See 20 U.S.C. § 1415(j).
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the ALJ noted, J.L.’s last agreed-upon IEP was created in 2019, when J.L. was in the fourth grade. 

J.L. is now in eighth grade. None of the intervening due process complaints, from 2019 to 2022, 

were adjudicated, meaning no stay put rights have been created by judicial order. J.L.’s parents 

and the Board have been unable to agree on revisions to J.L.’s IEP as required by statute. See 20 

U.S.C. § 1414(d)(4)(A). Since 2019, J.L. has not been in the general educational setting, but in 

unilateral private placements consisting of mostly one-on-one educational settings. There is no 

status quo to preserve—J.L. has cycled through three unilateral private placements since 2020.5

The IDEA is not supposed to function this way. Federal regulations enforcing that statute 

give clear directives to ensure a child’s placement remains current. Relevant here, the school 

“must ensure” that the child’s placement is determined at least annually and based on an IEP. See 

34 C.F.R. § 300.116(b)(1)–(2). The Board in this case has failed to meet that obligation; J.L. has 

not had a placement since, at the very latest, 2020. Nor has he had a functioning IEP since 

December 2019—another unmet IDEA mandate. See 20 U.S.C. § 1414(d)(2)(A). But fault does 

not lie entirely with the Board. Federal regulations also require “the parents” to play a role in the 

“placement decision.” Id. § 300.116(a)(1). Thus, both school and parent have a legal obligation 

to establish the child’s IEP.

5

J.L. argues on appeal that stay put is not “waivable,” (i.e., that stay put cannot be forfeited), and points to 

the motions panel’s statement that “[t]he ALJ’s conclusion that ‘the parents waived the IDEA’s stay put 

provision by unilaterally placing J.L. in a private school’ appears to take out of context our statement that 

‘it is logically dubious to stay in a school that [a child] ha[s] never attended.’” CA6 R. 18, Order, at 5 

(quoting N.W., 763 F.3d at 618). In other words, the motions panel cast doubt on the application of 

forfeiture to the stay put provision. But it is one thing to say that the parents forfeited the stay put protections 

and another to say that J.L. has failed to prove entitlement to a stay put injunction. If the child has no “thencurrent educational placement” to “remain” in, that is not forfeiture of a right—he has failed to show 

entitlement to the statutory injunction. The stay put provision has a “limited role and operation within the 

IDEA’s overall statutory scheme.” Davis, 80 F.4th at 329. It is a “shield[,] . . . not a sword to effectuate 

affirmative remedies.” Id. (internal quotations omitted). If the plaintiff has failed to prove entitlement to a 

stay put injunction, there is no forfeiture.
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These legal obligations and resulting agreement between the parents and the school are 

central to the stay put provision and the IDEA more broadly. The touchstone of the stay put 

provision is neither a FAPE nor the IEP, which Congress could have mandated, but did not. See 

Schaffer, 546 U.S. at 64 n.1 (Ginsburg, J., dissenting) (“True, Congress did not require that a child 

be given the educational placement that a parent requested during a dispute. But neither did 

Congress require the IEP advanced by the school district go into effect during the pendency of a 

dispute.”); see also Davis, 80 F.4th at 328 (“[T]he IDEA’s substantive guarantee is not necessarily 

realized through the procedural safeguard of § 1415(j).”). Instead, the touchstone is agreement.

Supreme Court decisions have highlighted the importance of agreement between the parents and 

the educators in the context of the stay put provision. See, e.g., Honig, 484 U.S. at 323, 327; Sch. 

Comm. Burlington, 471 U.S at 373–74. Indeed, the stay put provision itself makes an exception 

for an alternative agreement among the parents and educators, stating “during the pendency of 

[the] proceedings . . . unless the State or local educational agency and the parents otherwise agree, 

the child shall remain . . . .” 20 U.S.C. § 1415(j) (emphasis added); see also Rena C., 890 F.3d at 

417 (explaining that a school district’s agreement to pay for private school tuition constitutes an 

agreement to placement and triggers the child’s stay put rights). Other provisions of the IDEA 

also create the option for parents and educators to agree on placement outside of the typical IEP 

process, which demonstrates the importance of agreement between parents and educators to the 

overall statutory scheme. See, e.g., 20 U.S.C. § 1415(e) (providing for mediation between the 

parties that may result in “a legally binding agreement” resolving the parties’ dispute on “any 

matter,” presumably including stay put rights). Finally, other circuits have noted the importance 

of agreement between the parents and the educators for stay put. See, e.g., Doe v. Portland, 30 

F.4th at 91; Venture de Paulino, 959 F.3d at 532. Here, there has not been agreement between 
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J.L.’s parents and Williamson County on an educational approach since the 2020 Honig

Settlement.

J.L. argues that his stay put placement is a combination of general education and special 

education at Williamson County public schools pursuant to the 2019 IEP. CA6 R. 21, Appellant 

Br., at 23, 29, 35. There are two strengths to this argument. First, if “placement” in the stay put 

provision refers to a placement based on the child’s IEP and determined at least annually, see 34 

C.F.R. § 300.116(b)(1)–(2), that could favor designation of the 2019 IEP as the stay put placement. 

We note, however, that that IEP was drafted in 2019, creating a near five-year interval since the 

last “annual[]” determination and cutting against this requested placement. Second, many circuits 

which have considered the meaning of “then-current educational placement” have held that the 

last-implemented IEP is relevant to the determination. See, e.g., Doe v. East Lyme, 790 F.3d at 

452; Rena C., 890 F.3d at 415; E.E., 4 F.4th at 872. 

Still, J.L.’s argument is unpersuasive. To begin, the 2019 IEP as stay put does not fit the 

statutory language of § 1415(j). As discussed above, it expired on December 3, 2019. The 2019 

IEP was not a “then-current” educational placement that J.L. could “remain” in for the pendency 

of the proceedings because it was not “actually functioning” when J.L. filed his due process 

complaint on March 2, 2023. See Rena C., 890 F.3d at 415; E.E., 4 F.4th at 872. A general 

education setting, even with behavioral supports, has not been the status quo since early 2020. See 

Schaffer, 546 U.S. at 64 n.1 (Ginsburg, J., dissenting); Davis, 80 F.4th at 329; Olu-Cole, 930 F.3d 

at 524; Doe v. Portland, 30 F.4th at 91 (quoting Verhoeven, 207 F.3d at 3); Rena C., 890 F.3d at 

415 (quoting Drinker, 78 F.3d at 867); M.R., 744 F.3d at 118. So if, as here, no IEP is functioning 

when the operative dispute arises, the last IEP is not dispositive. See 34 C.F.R. § 300.116(b)(2) 

(placement is “based on the child’s IEP” (emphasis added)). And because J.L.’s team gave his 
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2019 IEP a limited term of operation, we must do the same. Cf. Diamond v. Michigan, 431 F.3d 

262, 267 (6th Cir. 2005) (similar stay-put provision of the Rehabilitation Act “only applies to 

services under an extant IPE [individualized plan for employment]” (emphasis added)).

Nor was the 2019 IEP the last agreed-upon educational placement. See N.W., 763 F.3d at 

618; see also Doe v. Portland, 30 F.4th at 91; Venture de Paulino, 959 F.3d at 532. As discussed 

above, the 2020 Honig Settlement, dated June 26, 2020, is certainly more “current” than the 2019 

IEP. 

True, the IDEA regulations define placement as determined at least annually, based on the 

child’s IEP, and as close as possible to the child’s home. See 34 C.F.R. § 300.116(b). But the 

regulations also note that the placement decision “[i]s made by a group of persons, including the 

parents,” thus emphasizing agreement between the parents and local educational agency. See id.

§ 300.116(a)(1). As discussed above, there has been no agreement here between J.L.’s parents 

and the Board since 2020. And as the Board rightly argues, the regulation’s definition of 

“placement” refers to the typical IEP process and does not cover all uses of the term “placement” 

in the IDEA or its regulations. See, e.g., 20 U.S.C. § 1415(k)(1) (describing the procedures for 

“[p]lacement in [an] alternative educational setting”); 20 U.S.C. § 1415(k)(3)(B) (giving hearing 

officers the authority to “order a change in placement of a child . . . to an appropriate interim 

alternative educational setting”); 34 C.F.R. § 300.518(d) (allowing a decision favorable to the 

parents during the administrative review process to be treated as a placement that is an agreement 

between the state and parents). While the regulation’s definition of “placement” and the stay put 

provision’s “then-current educational placement” may typically line up, see A.D., 727 F.3d at 914, 

they do not in this rare case. 
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In support of his argument that the 2019 IEP is his stay put placement, J.L. insists on strict 

application of N.W.—that his stay put placement is the “last agreed-upon” educational setting, 

notwithstanding the parties’ qualifications to that agreement. See N.W., 763 F.3d at 617–18. 

Indeed, nothing in N.W. requires us to heed the parties’ wishes; under N.W.’s language, all that 

matters is agreement. See id. at 618. That outcome, however, would discourage flexibility. 

Sometimes IDEA litigation is unavoidable, and often it is lengthy. See Sch. Comm. of the Town 

of Burlington v. Dep’t of Educ. of the Commonwealth of Mass., 471 U.S. 359, 370 (1985) 

(lamenting that litigation under the IDEA is “ponderous”). A rigid, agreement-only approach 

might chill IEP teams from crafting temporary solutions for fear of being locked in later. Thus, it 

seems best to treat IDEA agreements much like any other contract, allowing the parties to 

implement solutions tailored to suit the needs of the child. Under that approach, we honor the 

parties’ agreements—including their end dates.

IV.

In sum, we hold that J.L. has failed to show entitlement to the stay put injunction codified 

at 20 U.S.C. § 1415(j). Our task in this case is not to determine the best outcome for J.L.’s 

education. Federal judges possess neither the authority nor the expertise to make that call. Courts, 

moreover, don’t have the luxury of crafting a good-for-one-case-only rule. We may not pick and 

choose which portions of the law and record to apply in pursuit of what is, by our lights, a sensible 

outcome. Fortunately, however, deciding what is best for J.L. is, by statute, for the people who 

know him best—his IEP team. We advise that team to heed the IDEA and its accompanying 

regulations to avoid anomalies like this in the future.
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HELENE N. WHITE, Circuit Judge, dissenting. The majority interprets the IDEA—a 

statute enacted to protect disabled children—in a way that deprives J.L. of an education during the 

pendency of his years-long due process proceeding. Because such an outcome directly contradicts 

binding precedent from this circuit, misconstrues the IDEA’s language, and undermines the 

statute’s purpose, I dissent.

I. 

The stay-put provision states that, during the pendency of an IDEA due process proceeding, 

“the child shall remain in the then-current educational placement.” 20 U.S.C. § 1415(j). Based 

on this language, the majority concludes that the stay-put provision has a “timing” element, which 

forecloses its application to J.L. Maj. op. 13. This interpretation distorts the relevant statutory 

language and contradicts binding precedent.

The majority conflates “placement” with “enrollment.” A “placement” refers to the “act 

or instance of placing,” such as “the assignment of a person to a suitable place.” 

Merriam- Webster Online, https://www.merriam- webster.com/dictionary/placement (last accessed 

June 3, 2024). For the purposes of stay put, a child’s “placement” is designated by a child’s IEP 

and is supposed to be determined “at least annually” by the child’s parents and the school district. 

34 C.F.R. § 300.116(a)(1), (b)(1)–(2). But whether an individual remains enrolled in their 

placement has no bearing on whether the placement is still valid. See N.W. ex rel. J.W. v. Boone 

Cnty. Bd. of Educ., 763 F.3d 617–18 (6th Cir. 2014) (rejecting an interpretation tying stay-put 

placement to the “operative placement actually functioning” (quoting Thomas v. Cincinnati Bd. of 

Educ., 918 F.2d 625–26 (6th Cir. 1990))); but see Maj. op. 22 (contradicting precedent by applying 

the “actually functioning” language that this court explicitly abrogated in N.W.). Accordingly, a 

child’s stay-put placement does not necessarily coincide with the child’s enrollment at that time.
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Instead, the key question is whether the IEP’s placement from 2019 was “current” at the 

time J.L.’s parents initiated due-process proceedings. 

The majority first says no because the 2019 IEP was set to expire in December of the same 

year.1 Maj. op. 21. That is, the majority apparently concludes that stay-put protection applies only 

before an IEP expires. This interpretation would seriously undermine the IDEA’s structure. IEPs 

are intended to last a year at most, at which point a new IEP is negotiated—frequently during the 

summer before the new school year begins. When parents and school districts disagree on the 

terms of a new IEP, due process proceedings frequently follow. See, e.g., N.W. 763 F.3d at 613. 

But under the majority’s formulation, parents would be required to file a due process complaint 

before the old IEP expires to maintain stay-put protection. Such a rule would encourage parents 

to file premature complaints and incentivize school districts to stonewall negotiations until an 

IEP’s expiration date, knowing that the child will lose stay-put protection. The majority concludes 

that its approach enhances “flexibility,” but it instead creates incentives that will make agreement 

less likely and due process complaints more numerous.2 Due process proceedings should be a last 

resort, but the majority’s interpretation erases the IDEA’s stay-put provision for many who would 

prefer to spend more time resolving disagreements through negotiation rather than litigation.

1 The majority argues that an IEP should be treated “like any other contract,” and thus its expiration date 

should be read strictly for the purpose of stay put. Maj. op. 24. The problem with this argument is that an 

IEP is not like any other contract, but it is the vehicle through which the IDEA is implemented. As a result, 

the statute extends an IEP’s reach beyond its plain terms. See, e.g., 20 U.S.C. § 1415(k)(1)(D) (requiring a 

school district to continue pursuing the IEP’s goals even if a child is removed from their placement). 

Consequently, although parents and a school district may “otherwise agree” to a different arrangement, the 

statute and accompanying regulations favor the IEP in determining the appropriate placement. 34 C.F.R. 

§ 300.116(b)(2). 

2 The majority’s interpretation effectively punishes children for the acts of adults. Should the parents and 

school district fail to ratify a new IEP before the expiration of the old one, it is the child who loses their 

right to an education, potentially for years. 
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Alternatively, the majority says that a placement must be “actually functioning” to be 

current.3 Maj. op. 21. But neither the statute itself nor the relevant regulations state that a stayput placement must be “actually functioning” to be current. Even more worrisome, this 

interpretation was explicitly rejected by N.W., our sole on-point precedent on the matter. See 763 

F.3d at 611.

In N.W., the parents unilaterally withdrew their child from St. Rita’s—the placement 

designated in the IEP—and enrolled him at Applied Behavioral Services (“ABS”), another private 

school. Id. at 613. Because N.W. attended ABS at the time the due process proceedings began, 

the parents believed that ABS was the child’s stay-put placement. Id. Accordingly, the parents 

argued in subsequent due process proceedings that they were entitled to reimbursement for N.W.’s 

tuition at ABS. Id. at 614. The school district disagreed, arguing that, because it had never agreed 

to N.W.’s placement at ABS, N.W. had no right to reimbursement under stay put. Id. This court 

sided with the school district, reasoning that because the parents had unilaterally enrolled N.W. at 

ABS, stay put did not grant them reimbursement. Id. However, the panel clarified that N.W. would 

have had a right to stay put at St. Rita’s—the school that the parents and school district had agreed 

to in the last IEP—despite (1) the child not attending that school for four years, (2) the parents 

sending the child to another private school in the interim, and (3) the school district temporarily 

3 The majority argues that stay put no longer applied as soon as J.L.’s parents “unilaterally changed his 

educational placement.” Maj. op. 15. This interpretation has significant negative consequences. As the 

majority recognizes, “flexibility” is an important interest of the IDEA. Id. at 24. Because finding a perfect 

match can often be difficult with disabled children, parents—like those here, in N.W., and in Thomas—

frequently experiment with new educational arrangements. Parents do so not out of intransigence, but 

because they are often desperate to find an arrangement that works best for their disabled child. However, 

the majority punishes parents who want to try new academic settings, depriving the child of their right to 

return to their IEP-designated placement should the new arrangement prove unsuccessful. By doing so, the 

majority hinders flexibility by discouraging parents from exploring alternative educational opportunities. 

It is one thing to say that the new unilateral placement does not create a new stay put, even if successful; it 

is quite another to suggest that it erases the protections of the IEP-designated placement.
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paying for the child to attend ABS after St. Rita’s. Id. at 613–14, 618. N.W. makes clear that stay 

put applies to the last placement agreed upon by the parents and school district—generally 

contained within the last IEP—but not to stopgap agreements. Id. at 618. Importantly, N.W. did 

not link stay-put protection to the child’s enrollment at the time of the due process complaint. Id.

The majority’s reasons for disregarding N.W. do not hold up. First, the majority finds N.W.

unpersuasive, arguing that N.W. misread the statute. See Maj. op. 13–14. But this conclusion 

ignores N.W.’s precedential impact. Even in circumstances where a panel “would encourage our 

court to take another look at our precedent,” it still “must follow our binding precedent on the 

issue.” Loc. 1982, Int’l Longshoremen’s Ass’n v. Midwest Terminals of Toledo, Int’l, Inc., 944 F.3d 

607, 613 (6th Cir. 2019) (Thapar, J., concurring); see also Hopper v. Phil Plummer, 887 F.3d 744, 

752 n.3 (6th Cir. 2018) (explaining that a panel may not “re-evaluate” a rule from the circuit when 

it is “bound by precedent”). The majority impermissibly relegates N.W. to the dustbin.

Second, the majority believes that N.W.’s language is contradictory, giving “mixed signals” 

that undermine the precedent’s applicability. Maj. op. 16–17. However, N.W. is internally 

consistent when the opinion’s language is read in context. In declaring that stay put did not apply, 

the N.W. panel simply expressed that stay put did not grant N.W.’s parents the remedy they 

sought—reimbursement for ABS’s tuition expenses. N.W., 763 F.3d at 618. Because the parents 

did not want N.W. to attend St. Rita’s, they never invoked stay put for that purpose. Consequently, 

N.W. explains that although stay put did not apply to N.W.’s case—because the parents sought 

reimbursement for a placement made unilaterally—it would have applied had they invoked stay 

put differently. Id. 

The majority applies Thomas instead of N.W., a case that N.W. explicitly abrogated. 

763 F.3d at 618 (“The Thomas court’s approach may have been correct in 1990, but the Department 
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of Education’s promulgation of § 300.116 renders that interpretation obsolete.”). Because I believe 

N.W. governs the outcome of the case here, I disagree with the majority’s departure from our 

precedent.4 Accordingly, I would conclude that J.L.’s stay-put placement is the one last agreed 

upon by the parents and the school district in the 2019 IEP.5

4

In its discussion, the majority elevates cases from other circuits over our own. Even so, numerous circuits 

have rejected the majority’s interpretation. See, e.g., Doe v. Portland Pub. Sch., 30 F.4th 85, 91 (1st Cir. 

2022) (holding that stay put applies to the “last placement that the parents and the educational authority 

agreed to be appropriate” (quoting Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 3 (1st Cir. 1999))); 

Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 532 (2d Cir. 2020) (holding that stay 

put applies to the “last agreed-upon educational program before the parent requested a due process hearing 

to challenge the child’s IEP”); John M. v. Board of Educ. Of Evanston Twp. High Sch. Dist. 2020, 502 F.3d 

708, 814–15 (7th Cir. 2007) (holding that, where a child’s last IEP was implemented years earlier in middle 

school, and the child was now in high school, the last IEP still governed the stay-put placement, but it must 

be read at a higher level of generality); N.E. by and through C.E. and P.E. v. Seattle Sch. Dist., 842 F.3d 

1093, 1097 (9th Cir. 2016) (holding that the stay-put provision refers to the “placement set forth in the 

child’s last implemented IEP” (quoting K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d 1110, 1117–18 (9th 

Cir. 2011))). 

The majority relies heavily on precedent from the Third Circuit to argue that stay-put protection 

only applies to the IEP “actually functioning at the time the dispute first arises.” Rena C. v. Colonial Sch. 

Dist., 890 F.3d 404, 415 (3d Cir. 2018) (quoting Drinker by Drinker v. Colonial Sch. Dist., 78 F.3d 859, 

867 (3d Cir. 1996))). This is problematic because the Third Circuit’s rule was lifted directly from our 

circuit’s abrogated decision in Thomas. See Drinker, 78 F.3d at 867 (quoting Thomas, 918 F.2d at 625–

26). In effect, the majority attempts to circumvent our own case law by pulling language from a court that 

adopted our circuit’s abrogated language. See id.

Even if it were proper to defer to Third Circuit precedent, it is not clear that Drinker supports the 

majority’s interpretation. In Drinker, the child had an IEP for the 1992–93 school year, but the parties 

could not agree to a new one for 1993 or 1994. Id. at 862. The parents initiated due process proceedings 

in the fall of both 1993 and 1994, but the school district argued that there was no stay-put placement because 

the old IEP had expired and because an unappealed portion of the state proceedings had set a future 

placement for the child. Id. at 865. Still, the Third Circuit concluded that the expired 1992 IEP governed 

the child’s stay put placement because there was no other valid IEP in place at the time. Id. at 867. Rather 

than deprive the child of stay-put protection, the Third Circuit appeared to default to the most recently 

implemented IEP because a new placement was not yet in effect. Id. at 867. Thus, even under Third Circuit 

case law, the expiration of J.L.’s IEP would not necessarily deprive him of stay-put protection.

5

I recognize that it may seem odd to conclude that a four-year-old IEP governs J.L.’s stay-put placement, 

but that is what our precedent demands. In N.W., the stay-put placement was based on an IEP that was at 

least four years old. See N.W., 763 F.3d at 613, 618. Although N.W.’s parents agreed to a temporary 

interim settlement, the agreement explicitly stated that “[n]either party makes an admission as to 

educational placement.” Id. at 618. As a result, the N.W. panel concluded that the temporary placement 

could not be used for stay put. Id. Here, the parties employed similar limiting language in their settlement 

agreements. See R. 5-6, PID 75 (“The parties agree to place J.L. in a temporary homebound placement 

until a final order is issued, or until the parties enter into a settlement agreement.”); R. 5-7, PID 77 (“The 

parties agree that this Confidential Settlement Agreement does not create a ‘stay-put’ placement.”). 
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II.

I find it deeply problematic that the majority reads a statute intended to protect the 

education of disabled children in a way that strips them of protection. J.L.’s current due process 

complaint was filed in 2023 and may take years to resolve. Yet the majority effectively concludes 

that the IDEA entitles J.L. to no education at all. This outcome threatens to deprive J.L., a disabled 

child who should receive a FAPE under the IDEA, of the educational resources he needs in some 

of the most formative years of his life. Because this outcome is not one intended by the statute, 

nor one permitted by our binding case law, I dissent.

Thus, as in N.W., we must defer to the “last agreed-upon” placement, the 2019 IEP. N.W., 763 F.3d at 618. 

N.W.’s outcome was not unique—other circuits have also deferred to years-old agreements when 

determining the proper stay-put placement. See, e.g., Verhoeven, 207 F.3d at 9 (stay-put placement was 

determined by a two-year-old IEP, even though the parents and school district agreed to temporarily place 

the child at a different school in the interim); Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 

1135 (9th Cir. 2003) (holding that, where a child moved to a new school district, stay-put placement was 

based on the three-year-old IEP from the old school).