N.E. Ex Rel. C.E. v. Seattle School District, 842 F.3d 1093

Background

N.E., a child with disabilities, had been educated mainly in general education with 1:1 para support through most of 2014–15 (December 2014 IEP).
On May 26–27, 2015, Bellevue adopted a May 2015 IEP proposing a transition: a brief, agreed interim one‑on‑one classroom for remaining weeks of 2014–15 (stage one) and a self‑contained special education class to start Sept. 1, 2015 (stage two). Parents marked “disagree” to the proposed long‑term placement but allowed the interim placement.
The family moved to Seattle over summer 2015. Seattle proposed a placement similar to stage two (self‑contained). Parents requested a due process hearing and a stay‑put order; Seattle argued the May 2015 IEP (including stage two) was the then‑current placement.
An ALJ and the district court agreed with the school district; the district court denied preliminary injunctive relief. Plaintiffs appealed.
The Ninth Circuit majority held that a multi‑stage IEP that has been adopted is the student’s then‑current educational placement for stay‑put purposes, affirming denial of the stay‑put request.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
What is the “then‑current educational placement” for stay‑put when an adopted IEP has multiple stages and the family moves districts over summer?	Stay‑put must be the operative placement actually experienced by the child — here, either the prior general education placement or the short‑term interim individual class; an unimplemented future stage cannot be the stay‑put baseline.	The May 2015 IEP as a whole (including the scheduled stage two self‑contained placement) was the then‑current placement when parents sought the hearing, so stay‑put is the stage two setting.	Held for Defendant: a partially implemented, multi‑stage IEP adopted before the hearing is the student’s then‑current educational placement, so the self‑contained class was stay‑put.
Does timing (summer hiatus / start date before parents filed) change stay‑put analysis?	Summer break does not eliminate an operative placement; the status quo should be the last actual long‑term placement.	If the IEP scheduled the new placement to start before the parents filed, the anticipated start makes that the current placement for stay‑put purposes.	Held: anticipated implementation (Sept. 1 start) meant stage two was the status quo when parents filed on Sept. 9.
Can parents avoid a new IEP’s stay‑put effect by keeping a child out of school when the new placement begins?	Allowing parents to game implementation would better preserve the operative placement and parental rights.	If parents could nullify implementation by withdrawing the child, the stay‑put regime would be undermined; timely adopted IEPs should control.	Held: permitting such a tactic would undermine IDEA’s cooperative process; parents may not defeat an adopted IEP’s stay‑put effect by non‑implementation.
Were procedural defects (late prior written notice / failure to contest stage one earlier) preserved and dispositive?	Plaintiffs argued late notice and that stage one was temporary; argument about late notice was raised too late and waived.	District argued parents had opportunity and did not timely challenge May 2015 IEP before stage two’s start.	Held: procedural‑notice argument waived; critical fact that parents never challenged the May 2015 IEP before stage two’s scheduled start.

Key Cases Cited

K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d 1110 (9th Cir. 2011) (interpreting “current educational placement” as placement in the child’s last implemented IEP).
N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104 (9th Cir. 2010) (defining educational placement as the student’s general educational program).
L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900 (9th Cir. 2009) (stay‑put analysis tied to implemented IEPs in past precedent).
Johnson ex rel. Johnson v. Special Educ. Hearing Office, 287 F.3d 1176 (9th Cir. 2002) (per curiam) (characterizing stay‑put touchstone as the last implemented IEP).
Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105 (9th Cir. 2016) (describing IEP purpose and elements).
Honig v. Doe, 484 U.S. 305 (1988) (stay‑put and protections against unilateral exclusion of disabled students).
Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985) (stay‑put’s purpose to prevent removal from regular classroom pending review).
Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036 (9th Cir. 2009) (stay‑put prevents irreparable harm from premature removal to inappropriate settings).
Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618 (6th Cir. 1990) (stay‑put refers to operative placement actually functioning at time of dispute).