Lead Opinion
OPINION OF THE COURT
E.M. is а student at the Learning Center for Exceptional Children ■ (“LCEC”). LCEC is a private school for children with • intellectual disabilities. E.M.’s individualized education program — her federally-mandated education plan created by her parents, teachers, and local public-school system — says that she should attend L.CEC and integrated classes with students from Today’s Learning Center (“TLC”). TLC is a private school for regular-education students that shares classroom space with LCEC. The New Jersey Department of Education (“the Department”) asserts that it has not approved LCEC or TLC to teach integrated classes of regular-education students and students with disabilities. Therefore, the Department directed LCEC to confirm that it would not place its public-school students with disabilities in classrooms with private-school regular-education students. LCEC agreed under protest.
E.M.’s parents — D.M. and L.M. — on behalf of E.M. and LCEC sued the Department and two of its officials, challenging the Department’s regulation of LCEC as arbitrary and capricious, and sought preliminary injunctive relief. The District Court granted E.M. a preliminary injunction under the so-called “stay-put” rule of the Individuals with Disabilities Education Act (“IDEA”). The injunction allowed her to attend classes with TLC’s regular-education students during the pendency of the case. We will remand the case with the injunction intact for additional fact finding.
I.
1.
The Individuals with Disabilities Education Act imposes conditions on any State that accepts certain federal educational funding assistance. New Jersey accepts this assistance and is bound by those conditions.
Under IDEA, a State must provide a free appropriate public education to all students with intellectual disabilities. 20 U.S.C. § 1412(a)(1)(A).
An individualized education program— frequently abbreviated as “IEP” — must be created and in effect for each child with disabilities by the beginning of each school year. 20 U.S.C. §§ 1412(a)(4), 1414(d)(2)(A). Each year, a child’s IEP is developed by a team that includes the child’s parents, at least one regular-education teacher, at least one special-education teacher, a representative of the local educational agency, and the child himself or herself, if appropriate. Id. § 1414(d)(1)(B). If needed to interpret evaluation results or to provide other expertise, additional individuals may participate in creating the IEP. Id. The IEP should state the child’s present levels of achievement and performance, provide annual goals, and explain how progress will be measured. Id. § 1414(d)(1)(A)®. The IEP should also state “the sрecial education and related services and supplementary aids and services ... to be provided to the child” and “the anticipated frequency, location, and duration of those services and modifications.” Id. § 1414(d)(l)(A)(i)(IV), (VII). Once an IEP has been created, it may only be amended by the entire IEP team or by agreement between the parents and the local educational agency. Id. § 1414(d)(3)(F).
IDEA also requires that States provide a dispute resolution system should a parent or public agency dispute whether the child is receiving a free appropriate public education. Either party may seek mediation or present a complaint to an administrative law judge, who will then adjudicate the parties’ disagreement. Id. § 1415(b)(6), (c)(2), (d), (e), (f). When parties go before an administrative law judge, the process is called a “due process hearing.” Id. § 1415(f). Any party aggrieved by the ALJ’s findings can administratively appeal. Id. §. 1415(g). Any party still aggrieved after the administrative appeal may file a civil action in a state court of competent jurisdiction or in a federal district court. Id. § 1415(i)(2).
Importantly, IDEA rеquires that “during the pendency of any proceedings” the child “shall remain in the then-current educational placement” unless the parents and the state or local educational agency agree otherwise. Id. § 1415(j). This is commonly referred to as IDEA’S “stay-put” rule.
2.
The Learning Center for Exceptional Children is a private school for students with disabilities. It opened in 1978. During the times relevant to this lawsuit, LCEC leased classroom space in a building in Clifton, New Jersey. Also sharing this space was a private school for regular-education students, Today’s Learning Center. The principal of LCEC is also the principal of TLC.
LCEC has received authorization from the New Jersey Department of Education to educate public-school students with disabilities referred to LCEC by the students’ local public-school systems into certain programs. LCEC received its most recent approval in 2011. In its application for this approval, LCEC listed one of the programs as “integration of disabled and non-disabled peers.” App. at 25 (alteration omitted). The application, however,
E.M. is a ten-year-old girl who most recently was in the fourth grade. Her local public-school system, Hoboken, classified her as “Multiply Disabled” and eligible to receive special education services. Beginning in January 2011, she has attended LCEC, as stated in her IEPs for each year. “LCEC was specifically selected as the out-of-district educational placement for E.M. due to her unique academic and social/emotional needs.” App. at 22. For the 2014-15 school year, “[E.M.’s] IEP calls for her to [be] integrated with regular education students in a small classroom at TLC with a low student-to-teacher ratio.” Id. She is also to receive a one-on-one, in-classroom assistant and other curricular modifications.
In December 2013, after an on-site inspection, the Department requested a “statement of assurance that nonpublic school students from TLC are not in class with public school students from LCEC.” App. at 26. The Department subsequently denied LCEC’s request to locate tо a different building, stating that it did so because LCEC educated its public-school students with disabilities with TLC’s regular education students. The Department also changed LCEC’s approval status to “conditional approval,” which meant that LCEC could not enroll any new public school students. See N.J. Admin.Code § 6A:14-7.10(b)(l)(i). LCEC filed petitions for review of both decisions with the New Jersey Office of Administrative Law, which are still pending although a decision is expected shortly. In July 2014, LCEC assured the Department that it would not place its public-school students with disabilities in classrooms with TLC’s regular-education students, despite the fact that some of its students’ IEPs — such as E.M.’s — called for it. LCEC remains on conditional approval status.
3.
On July 23, 2014, LCEC and E.M., through her parents D.M. and L.M., sued the Department, as well as Linda Chavez and Peggy McDonald — two senior employees in the Department. LCEC sought injunctive and declaratory relief allowing LCEC to accept new students and to educate its public-school students with TLC’s regular-education students. E.M. sought, injunctive and declaratory relief prohibiting the Department from acting “in a manner that precludes LCEC from implementing the mainstreaming componеnt of E.M.’s IEP.” App. at 37.
After the District Court denied the plaintiffs’ request for a temporary restraining order, the parties filed and briefed a motion for a preliminary injunction on an accelerated basis. When the briefing was complete, the District Court held a hearing. The District Court, finding that the plaintiffs’ arguments had evolved, ordered supplemental briefing on the applicability of the “stay-put” rule to E.M.
After the supplemental briefing, the District Court granted a preliminary injunction to E.M. only. It held that E.M. did not need to first seek a “stay-put” order from the administrative process, that the Department was altering E.M.’s “educational placement” by preventing LCEC
II.
The District Court had jurisdiction over this suit under 28 U.S.C. § 1381. We have jurisdiction over this appeal from the District Court’s order entering a preliminary injunction under 28 U.S.C. § 1292(a)(1).
Typically, we review the District Court’s preliminary injunction under a “tripartite standard”: “We review the District Court’s findings of fact for clear error. Legal conclusions are assessed de novo. The ultimate decision to grant or deny the injunction is reviewed for abuse of discretion.” K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist.,
The “stay-put” rule “functions, in essence, as an automatic preliminary injunction.” Drinker ex rel. Drinker v. Colonial Sch. Dist.,
III.
Under 20 U.S.C. § 1415(j), “during the pendency of any proceedings conducted pursuant to [§ 1415], 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.” In other words, if there are “proceedings conducted pursuant to [§ 1415]” ongoing and the child will otherwise be moved from her “then-current educational placement,” the child is entitled to an injunction against the change. We must, therefore, ask two questions. First, is E.M.’s suit against the Department a “proceeding! ] conducted pursuant to [§ 1415]”? Second, is E.M.’s “educational placement” being altered?
1.
Whether E.M.’s suit against the Department — claiming that its directive to LCEC breaches its obligations under IDEA and denies her a free appropriate public education — constitutes a “proceeding!] conducted pursuant to [§ 1415]” requires us to consider two subordinate issues. First, the federal courts must have subject-mattеr jurisdiction over the suit. Second,
IDEA authorizes an aggrieved party to file suit in a federal district court should there be a dispute as to whether a child is receiving a free appropriate public education. 20 U.S.C. § 1415(i)(2)-(3). However, a federal court may not exercise subject-matter jurisdiction over the dispute unless state administrative remedies have' been exhausted. Batchelor v. Rose Tree Media Sch. Dist.,
Here, we find that the administrative process would be unable to grant relief, and so exhaustion of that process is unnecessary.
We therefore turn to the second issue: does § 1415 contemplate and allow E.M.’s suit against the Department? The answer is yes. E.M. believes that the Department’s interpretation of the scope of LCEC’s approvals is incorrect, arbitrary, and capricious. By imposing its interpretation of the scope of LCEC’s approvals on E.M., the Department would prevent E.M. from having her IEP implemented as worded: that she attend LCEC and integrated classes with students at TLC. Because receiving an education in compliance with her IEP is a part of receiving a free appropriate public education under IDEA, see 20 U.S.C. § 1401(9)(D), the Department is thus arguably interfering with her ability to receive a free appropriate public education. The entire purpose of § 1415 is to provide parents “procedural safeguards with respect to the
Moreover, under IDEA, a parent who prevails in a lawsuit may receive reasonable attorneys’ fees and costs. Id. § 1415(i)(3)(B)(i)(I). Importantly, a district court can award attorneys’ fees to “a State educational agency” if it is the “prеvailing party” and the underlying action was frivolous or was presented for an improper purpose. Id. § 1415(i)(3)(B)(i)(II)-(III). Therefore, because E.M.’s claim is one that concerns the provision of a free appropriate public education to her and because the Department is a permissible party in an IDEA lawsuit in a federal district court, we conclude that E.M.’s lawsuit against the Department is a “proceeding[ ] conducted pursuant to [§ 1415].”
The Department’s arguments to the contrary rely on cases we find inapplicable. First,- the Department relies on Judge Becker’s opinion in DeLeon v. Susquehanna Community School District,
In Tilton, a local school district planned to close a full-year education program for students with disabilities for budget reasons and to transfer the students to 180-day programs.
From these cases, the Department would have us craft a rule that exempts state regulation of public and private schools from the reach of a § 1415 action. Both DeLeon and Tilton suggest that certain types of state or school district action — namely funding decisions — are not the proper subjects of a suit under IDEA. However, E.M.’s claim does not raise the same concerns as the hypothetical challenge in DeLeon and the actual challenge in Tilton. Those cases were concerned with preventing the “stay-put” rule from intruding on areas of state authority with which IDEA has only a tangential relationship — such as a budgetary decision.
This is key, we think. E.M.’s claim focuses on a responsibility of the state educational agency under IDEA: proper
The Department next relies on O’Bannon v. Town Court Nursing Center,
The fact that O’Bannon is a constitutional due process case is what distinguishes it from this one. The residents in O’Bannon were seeking to find an interest sufficient to trigger the protections of the Due Process Clause, and the Court concluded that no such interest existed. E.M. does not need the Due Process Clause of the Constitution to get an injunction here. If she can show that she has begun a “proceeding! ] conducted pursuant to [§ 1415]” and that she faces a change in her “then-current educational placement,” IDEA grants her an injunction. O’Bannon does not help us determine whether the first of these requirements is met, which is what we consider here.
Finally, the Department relies on Dima v. Macchiarola,
We are satisfied that E.M.’s suit against the Department is a “proceedingt] conducted pursuant to [§ 1415].” However, this implies nothing about the merits of her claims against the Department. The merits of the underlying suit have no impact on whether “stay-put” applies in a given case, and we express no opinion on them here. See Drinker,
2.
Because E.M.’s suit is a “proceed-ingt ] conducted pursuant to [§ 1415],” she is entitled to remain in her “then-current educational placement” under § 1415(j). Therefore, she is entitled to an injunction should the Department attempt to alter her “educational placement.” E.M. says that by instructing LCEC not to allow its public-school students in classrooms with regular-education students from TLC, which is required by her IEP, the Department is attempting to alter her “educational placement.” The Department responds that E.M. can receive the same services provided by LCEC at a different school, so her “educational placement” is unchanged. To resolve this dispute, we have to address what “educational placement” means in this context.
The term “educational placement” igmot defined by IDEA or its implementing regulations. Nevertheless, this Court has previously interpreted the term to mean “whether [a change] is likely to affect in some significant way the child’s learning experience.” DeLeon,
E.M. argues, and the District Court held, that her current educational placement is to implement her IEP at LCEC and TLC. E.M. finds support for this position in Drinker; we held there that because the child’s IEP team “had determined the appropriate placement and location of services” for the child to be a particular school, that school was the child’s educational placement. Id. It also accords with the notion that an IEP for
The Department, however, argues that “educational placement” does not mean a specific school when a state or local agency acts in a way that affects a group of children, rather than in a way directed towards any individual child specifically. Instead, when the agency acts in a way that affects a group, “educational placement” means the overall educational requirements contained in the IEP. The^Department contends that its actions are not targeted towards E.M. specifically, so if another school can provide E.M. with the programs included in her IEP, she is not entitled to remain at LCEC.
In support of its position, the Department cites a statement by the U.S. Department of Education in the Federal Register and a group of cases from other circuits. The Department of Education, in creating implementing regulаtions for IDEA, drafted and implemented a regulation corresponding to the “stay-put” rule of § 1415®. 34 C.F.R. § 300.518(a). The regulatory “stay-put” rule uses the same term, “educational placement,” that the statute uses. The term is not defined in the regulations even though it is a commonly used term throughout the implementing regulations. The lack of a definition was the subject of comments when the regulations were first publicized. The Department of Education noted that “[a] few commenters suggested that the term ‘educational placement’ be defined to include location, supports, and services provided.” Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed.Reg. 46,540, 46,687 (Aug. 14, 2006) (emphasis added). The Department decided not to define the terms, although “[t]he Department’s longstanding position is that placement refers to the provision of special education and related services rather than a specific place, such as a specific classroom or specific school.” Id. (emphasis added).
The Courts of Appeals have also generally come to the same conclusion. In Concerned Parents & Citizens for the Continuing Education at Malcolm X (PS 79) v. New York City Board of Education, the local board of education planned to close a school for budgetary reasons and transfer the students with disabilities to other schools; the parents of those children sought a “stay-put” order barring the closure while they challenged it.
In AW ex rel. Wilson v. Fairfax County School Board, a student was transferred from his preferred school for disciplinary reasons and challenged the transfer as being in violation of the “stay-put” rule.
These decisions indicate that, at least in some situations, a child’s “educational placement” does not include the specific school the child attends. But in each of these decisions, an alternative location provided sufficient services to satisfy the requirements of the student’s IEP. See Concerned Parents,
These decisions are consistent with our opinion in DeLeon. Judge Becker in De-Leon noted that “[t]he question of what constitutes a change in educational placement is, necessarily, fact specific.”
The Eighth Circuit summarized this dichotomy well:
A transfer to a different school building for fiscal or other reasons unrelated to the disabled child has generally not been deemed a change in placement, whereas an expulsion from school or some other change in location made on account of the disabled child or his behavior has usually been deemed a change in educational placement that violates the stay-put provision if made unilaterally.
Hale ex rel. Hale v. Poplar Bluffs R-I Sch. Dist.,
We are operating in this case in a gray area. The facts of this case are distinguishable from the decisions involving school closures for general budgetary or administrative reasons. See, e.g., N.D. ex rel. Parents Acting as Guardians Ad Litem v. Haw. Dep’t of Educ.,
The language of IDEA is broad enough to cover circumstances other thаn those that purely address a single student. The State’s legitimate interest in regulating private schools like LCEC and TLC is such that it can rightly communicate its licensing concerns to the administrators of those schools, but it cannot wield its regulatory authority in a fashion that immediately and without notice — or any proposed alternative — requires a child’s IEP to be dispensed with while administrators are in discussions about licensing requirements. A main point of the “stay-put” provision in IDEA is to protect individual students while educational regulators and those interested in a child’s education are working out disputes. We are not suggesting that E.M.’s “educational placement” requires that she stay at LCEC. We are saying rather that her “placement” is at least the program identified in her IEP and that the Department’s actions in this particular case are, if there is no viable educational alternative, recognizable as effecting a change in that placement and hence subjecting the Department to a “stay-put” injunction of the limited variety imposed by the District Court.
3.
To reiterate, we have no occasion to deсide whether moving E.M. to another school would constitute a change in “placement.” One aspect of this case that must be particularly frustrating to E.M.’s parents and perhaps to E.M. herself is that nothing in the course of the disputations between E.M.’s school and the Department seems to have taken account of whether another school is available to satisfy the requirements of E.M.’s IEP. She has been caught in a bureaucratic crossfire in which scant attention, if any, has been directed at alternatives to satisfy her educational needs. The District Court appears to have understood that problem and sought to prevent E.M. becoming a casualty of evolving discussions on the future of her present school. We do not understand the District Court to have taken any position on whether the “stay-put” injunction will survive a decision by the Department to close LCEC or by the local public-school system to transfer students like E.M. to another school capable of implementing their IEPs. Nor do we. Instead, given the unsettled state of the record (which does not even contain a сopy of E.M.’s IEP, just a summary from provisions of the Verified Complaint), we think it best to remand the case, with the “stay-put” injunction in place, for further development of the rec
IV.
For these reasons, we remand this case to the District Court for additional fact finding consistent with this opinion.
Notes
. The United Slates Department of Education has issued implementing regulations for IDEA. See 34 C.F.R. pt. 300. However, the general statutory provisions are sufficient to provide background.
. '‘Mainstreaming” refers to the process in which students with disabilities are integrated with their non-disabled peers in regular-education classrooms.
. The Department has moved to dismiss LCEC’s and E.M.'s complaint. That motion is still pending before the District Court, although the District Court recently requested, and the parties have filed, supplemental briefing on the motion.
, We recognize that the District Court is currently considering this issue in deciding the Department’s motion to dismiss. However, because exhaustion is a question of subject-matter jurisdiction, it should have been addressed first; if exhaustion were required, the District Court would have lacked jurisdiction to enter the injunction.
. Our dissenting colleague embraces the Department’s argument, stating that "the 'stay put' provision does not apply when the change in educational placement results from a broad policy decision grounded in matters of licensing, administration, or fiscal policy.” Dissent at 221. However, our colleague supports this statement, predominantly, with cases holding that no change in educational placement occurred. See, e.g., id. at 221-22 (citing cases). As explained below, we think that position has some force. However, we think that whether a change in placement has occurred is a different question than whether litigants can ever challenge a "broad policy decision” through IDEA.
. The Department also relies on White ex rel. White v. Ascension Parish School Board,
Dissenting Opinion
dissenting.
At its core, this case is a licensing dispute between the New Jersey Department of Education (“NJDOE”) and the Learning Center for Exceptional Children (“LCEC”). Thwarted at the state administrative level, LCEC filed this lawsuit, joined by E.M. and her parents, in an effort to forestall NJDOE’s actions. Plaintiffs have attempted to stop NJDOE by relying on a provision of the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1415, that is meant to prevent local agencies from changing a child’s education while the school and the parents address their disputes about the child’s educational placement. As more fully explained herein, § 1415 does not provide a basis for relief here because: (1) Plaintiffs do not satisfy the unambiguous statutory prerequisites; and (2) this provision does not cover challenges to a state’s licensing decision that equally applies to all students at a particular school. For these reasons, I dissent.
I
As the Majority has explained, E.M. is a disabled student receiving special education services at LCEC pursuant to an individualized education plan (“IEP”) devised by her parents and the Hoboken School District. Her IEP requires that a portion of her education be conducted with typically developing peers. This is known as “mainstreaming.” App. 21. Because LCEC only enrolls public school special education students, it arranged for students at its sister school, Today’s Learning Center, which enrolls private school general education students, to participate in activities with LCEC students.
The NJDOE has asserted that LCEC is not authorized to educate private school general education students alongside public school special education students. When LCEC failed to assure the NJDOE that such education was not occurring, NJDOE placed LCEC on conditional approval status, which meant it could not accept new students. LCEC, which consequently lost students (and revenue), construed this directive as barring mainstreaming, thereby limiting its ability to educate E.M. according to her IEP and contravening the IDEA’S goal of ensuring that students are educated in the least restrictive environment possible.
E.M. is caught in the cross-fire of this regulatory dispute: her IEP requires mainstreaming, but the school she attends cannot provide it. E.M. has invoked § 1415(j), IDEA’S “stay put” provision, to enjoin the NJDOE from interfering with the mainstreaming component of her IEP while the dispute between the NJDOE and LCEC remains unresolved. The able District Judge, confronted with the Plaintiffs’ frequently shifting positions on the relief sought and the basis for it, relied upon § 1415(j) and granted E.M. relief.
The narrow issue before us is whether the IDEA’S “stay put” provision is an appropriate mechanism to provide the relief E.M. seeks, namely the ability to obtain uninterrupted mainstreaming opportunities at LCEC. Because Plaintiffs have not satisfied the conditions for obtaining “stay put” relief under § 1415, E.M. is.not entitled to an injunction under this provision. In addition, because Plaintiffs are, in effect, challenging a state regulator’s policy
II
As the Majority thoroughly explains, under the IDEA, parents and guardians play a central role in the education of their special needs children. Schaffer ex rel. Schaffer v. Weast,
Recognizing that these due process safeguards may result in lengthy proceedings, Congress enacted a “stay put” provision that “protects the status quo of a child’s educational placement,” C.H. ex rel. Hayes v. Cape Henlopen Sch. Dist.,
[Djuring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission tо a public school, shall, with the consent of the parents, be placed in thé public program until all such proceedings have been completed.
20 U.S.C. §. 1415CÍ).
Plaintiffs filed this action in District Court without first initiating a proceeding under § 1415. Proceedings under § 1415 focus on the individual student’s education, “including] the conduct and development of evaluations, eligibility determinations, IEPs, and educational placement.” Michael C. ex rel Stephen C. v. Radnor Twp. Sch. Dist.,
Moreover, as the Majority acknowledges, there is no evidence that a change in E.M.’s educational placement has been proposed or has occurred as the plain wording of § 1415 requires. The present record does not show that the Hoboken School District has taken steps to change E.M.’s IEP, that it intends to move E.M. to a different school with a different educational program, or that she presently lacks the mainstreaming opportunity thát has been described as being part of her IEP.
For these reasons, Plaintiffs have not satisfied the prerequisites to obtain a “stay put” order under § 1415 and, therefore, on this record, relief on that basis should not have been granted.
Ill
Plaintiffs’ reliance on the “stay put” provision fails for an additional reason. Even if Plaintiffs would otherwise satisfy the requirements for a change in educational placement under § 1415, they cannot overcome the general rule that the “stay put” provision does not apply when such a change results from a broad policy decision grounded in matters of licensing, administration, or fiscal policy, as opposed to a decision about an individual student. See, e.g. N.D. ex rel. Parents Acting as Guardians Ad Litem v. Haw. Dep’t of Educ.,
There are several reasons for denying individual plaintiffs the ability to invoke the “stay put” provision when they are challenging a system-wide policy or decision. First, “nothing in the legislative history or the language of the [IDEA] implies a legislative intent to permit interested parties to utilize the automatic injunction procedure of [the ‘stay put’ provision] to frustrate the” state’s policy decisions. Tilton by Richards v. Jefferson Cnty. Bd. of Educ.,
Second, permitting the “stay put” provision to be employed to challenge state policy decisions would effect a transfer of power from the state to parents. Tilton,
Third, the power to approve programs and control fiscal matters is a power vested with the state. Dima v. Macchiarola,
Here, Plaintiffs seek to “[e]njoin[] the [Defendants] from enforcing N.J.A.C. 6A:14-4.7(a) in a manner that precludes LCEC from implementing the mainstreaming component of E.M.’s IEP.” App. 37. This claim in effect challenges the NJDOE’s licensing decision concerning LCEC. Although Plaintiffs have attempted to cast NJDOE’s decision as a violation of E.M.’s IEP because enforcement of the regulation will impact her, there is no allegation that NJDOE’s enforcement of the regulation targets E.M. or changes her IEP. In fact, NJDOE’s position equally applies to all LCEC students with an IEP that provides for mainstreaming. Thus, Plaintiffs challenge a policy decision that does not trigger the “stay put” provision. See Tilton,
E.M. is entitled -to every protection available to her, including a free and appropriate education in the least restrictive environment. Nonetheless, efforts to secure these protections must be brought against the proper parties in the proper forum.
For all of these reasons, I would vacate the order granting “stay put” relief under § 1415.
. Because the IDEA’S predecessor statutes contained a "stay put” provision similar to that of the IDEA, we may properly look to cases that predate the IDEA for guidance in interpreting its "stay put” provision. See Pardini v. Allegheny Intermediate Unit,.
. As the Majority correctly notes, E.M.'s IEP is not part of the record and the only information about it comes from assertions in the pleadings.
. To the extent Plaintiffs argue that E.M.'s educational placement has changed because LCEC no longer provides mainstreaming, they have asserted the wrong claim. The proper vehicle to challenge a failure to provide mainstreaming consistent with the requirements of E.M.'s IEP is a claim against the Hoboken School District for "failure to implement” her IEP. See Houston Indep. Sch. Dist. v. Bobby R.,
. See also Tilton,
. Under the Majority's rule, if a system-wide decision or policy results in closing a school and if there are no viable alternative programs for a particular student, then that student would be permitted to stop the implementation of the decision or policy, even if the state had a reason for its actions. If a decision or policy resulted in a particular student having no alternatives, the answer is to create an alternative, not to require the state to allow a school to operate in contravention of the rule or policy.
. This is not to say that the IDEA could never be used as a vehicle to challenge a policy decision that violates the statute nor is it to say that other avenues for relief cannot be pursued to protect the interests of an individual child. Rather, challenges to universally applicable policy decisions do not trigger an individual student’s right to "stay put" under § 1415.