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J. L.
v.
Williamson Cnty. Bd. of Educ.
23-5704.
Court of Appeals for the Sixth Circuit.
Aug 2, 2024.
Unpublished

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0341n.06

Case No. 23-5704

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Aug 02, 2024 J.L., through his parents and guardians S.L. KELLY L. STEPHENS, Clerk ) and M.L.; S.L.; M.L., ) Plaintiffs - Appellants, ) ON APPEAL FROM THE UNITED ) v. STATES DISTRICT COURT FOR THE ) MIDDLE DISTRICT OF TENNESSEE ) WILLIAMSON COUNTY, TENNESSEE, ) BOARD OF EDUCATION, OPINION ) Defendant - Appellee. ) )

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. 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 No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ.

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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 No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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

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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 No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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

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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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No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ.

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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No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ.

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 No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ.

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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 Olu-

Cole 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 Olu-

Cole’s motion for a preliminary injunction demonstrated that the two statutorily required factors No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ.

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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).

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No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ.

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).

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).
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 Sch. Comm., 207 F.3d 1, 5 (1st Cir. 1999) (explaining that the determination of educational placement under § 1415(j) is reviewed de novo). - 10 - No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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 - 11 - No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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. - 12 - No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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)). - 13 - No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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 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. - 26 - No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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 - 27 - No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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.”). - 28 - No. 23-5704, J.L., et al. v. Williamson Cnty., Tenn. Bd. of Educ. 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). - 29 -