N.D., et al., disabled minors enrolled in the State of Hawaii’s public school system, alleging violations of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1487 (2006), appeal an order denying their motion for a preliminary injunction seeking to prevent Hawaii from shutting down public schools on seventeen
I.
The State of Hawaii is currently in the midst of a major fiscal crisis. To help alleviate the fiscal crisis, Hawaii decided to shut down the public schools for seventeen Fridays in the 2009-2010 school year. School children, disabled and nondisabled alike, would not attend school on those Fridays. The elimination of those seventeen Fridays from the school calendar constitutes a reduction in instructional days of approximately ten percent. Hawaii reached a negotiated agreement, covering the 2009-2010 and 2010-2011 school years, with the Hawaii State Teachers Association, the state teachers union, to implement furloughs of all public school teachers on the Fridays when the schools were closed. The first so-called “furlough Friday” was on October 23, 2009.
In response to the impending furloughs, N.D. requested a due process hearing on October 19, 2009 from the State of Hawaii Department of Education regarding the potential change in his individual educational program.
N.D. filed suit in district court on October 20, 2009, naming only the State of Hawaii Department of Education as a defendant. The plaintiffs included nine disabled children enrolled in five public schools. N.D. alleges that the furlough of the teachers and concurrent shutdown of the public schools violated his rights under the IDEA. Specifically, N.D. alleges that the furloughs constituted a change in his educational placement, and as part of his request for a due process hearing, he was entitled to remain in his then-current educational placement. N.D. moved for a temporary injunction of the furloughs. The temporary injunction was denied by the district court on October 22, 2009.
On November 9, 2009, the district court held a hearing on whether a preliminary injunction should be issued. The injunctive relief N.D. has sought over the course of the litigation is an end to the school
This timely appeal followed the denial of N.D.’s motion for a preliminary injunction.
II.
The State of Hawaii alleges that N.D. failed to join a necessary party, the HSTA. Hawaii alleges that the HSTA is a necessary party to the litigation because Hawaii negotiated a contract with the HSTA for the furlough days and a preliminary injunction would void that contract, affecting HSTA’s contract rights. The district court failed to rule on this issue, therefore we review it de novo. UOP v. United States,
The HSTA is necessary if complete relief cannot be granted without it. FED. R. CIV. P. 19(a)(1)(A); Altmann v. Republic of Austria,
As to the first test, we have held that a “party to a contract is necessary ... to litigation seeking to decimate that contract.” Id. at 1157. Hawaii argues that the negotiated agreement would be voided by the injunctive relief sought by N.D. because Hawaii would have to order the teachers back to school, which Hawaii alleges violates the contract. This is premised on paragraph (3)(c) of the contract which provides that the furloughs that may be implemented are subject to the condition that “[a]ll 10 month employees shall be placed on furloughs for a total of 34 days over the 2009-2011 fiscal biennium.” (emphasis added). Once the furloughs have been implemented, then employees are mandatorily furloughed for 34 days over two years. There appears to be no option for recalling the teachers. Forcing the State to violate the contract would render the entire contract void because the furlough provision is the whole purpose of the contract. See Beneficial Hawaii, Inc. v. Kida,
In this case, complete relief can be granted since an injunction would not render the contract illegal. An injunction would only require the schools to be open and the IEPs followed. The injunction does not order the State to order the teachers back to work nor does it declare the furloughs illegal. The furloughs are a byproduct of shutting the schools down. N.D. does not have to prove that the contract is illegal for the injunction to issue. The question of how Hawaii decides to staff the schools when they are open and implement the IEPs is not before us. The State has not shown that an injunction would necessarily force it to violate the contract.
III.
Hawaii also argues that N.D. failed to exhaust all of his administrative remedies before coming to federal court. Whether exhaustion is required under the IDEA is a question of law that is reviewed de novo. Doe v. Arizona Dept. of Educ.,
It is undisputed that N.D. has not exhausted his administrative remedies. He has not completed his due process hearing. Judicial review under the IDEA in a particular case is normally available only if the plaintiff exhausts her administrative remedies. 20 U.S.C. § 1415(Z) (2006); Kutasi v. Las Virgenes Unified Sch. Dist.,
[Rjecognizes the traditionally strong state and local interest in education, allows for the exercise of discretion and educational expertise by state agencies, affords full exploration of technical educational issues, furthers development of a factual record and promotes judicial efficiency by giving state and local agencies the first opportunity to correct shortcomings.
Kutasi,
We have not yet addressed the issue of whether exhaustion is required in the context of a suit alleging violations of § 1415(j). All of our previous cases regarding exhaustion under the IDEA have dealt with requests for damages and not with the stay-put provision. See Kutasi,
We find the Second Circuit’s reasoning persuasive and adopt it here. Hawaii argues that the administrative process can provide adequate relief and points to all the steps it has taken amidst the furloughs to reschedule IEP services. This argument is a non-sequitur. Hawaii’s argument presupposes that the steps it has taken will be effective and provide a comparable setting to N.D.’s current edu
IV.
The substantive issue is whether the district court erred in denying the preliminary injunction.
As set forth by the Supreme Court:
plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.
Sierra Forest Legacy v. Rey,
N.D. alleges several errors in the district court’s ruling. N.D. argues, first, that the district court applied the wrong standard and should have applied the stay-put provision’s automatic injunction standard rather than the preliminary injunction standard. N.D. further argues that even if the district court did apply the correct standard, it abused its discretion in evaluating the factors. Finally, N.D. argues that the district court erred in finding that he was not likely to succeed on the merits because the furloughs did not create a change in his educational placement and therefore the stay-put provisions did not apply.
A.
First, N.D. argues that the stay-put provision’s automatic injunction should apply instead of the balancing test re
N.D. relies on Joshua A v. Rocklin Unified Sch. Dist.,
B.
We now turn to the four factors of the preliminary injunction test and evaluate them one-by-one.
Proceeding to the balance of the equities, the district court found that the balance of the equities was a “close question” and could not say that “the equities particularly tip in favor of the plaintiffs.” The district court considered the money that would not have to be spent keeping the schools open, and the layoffs that might need to occur if the State did not implement the furloughs, against the harm the children were suffering as a result of the furloughs. In particular the district court noted that the furloughs were “the least bad of all the bad choices you can make.” The district court did not abuse its discretion in determining that the equities were “fairly balanced.”
We now turn to the public interest. N.D. argues that the public’s interest is in having the State comply with the IDEA. While it is obvious that compliance with the law is in the public interest, the district court looked to many more factors affecting the public interest. The district court noted that the public certainly did not benefit from a decrease in the number of instructional days. However, the district court considered this against the potential for increased class sizes if the State had to layoff teachers. The court noted that the deprivation of special education to the disabled children did not outweigh the decrease in educational quality related to larger class sizes. The district court ultimately concluded that the public interest did not particularly favor the plaintiffs although they did “make out a strong case.” This finding of fact by the district court is not an abuse of discretion either. The public interest on both sides is great and as the district court recognized, it is difficult to quantify the harm on both sides.
C.
What this case turns on, as the district court recognized, is N.D.’s likelihood of success on the merits of his suit. The heart of the case is whether the furloughs are a change in the educational placement of the disabled children such that the stay-put provisions apply. The question of whether § 1415© applies is a legal one. If N.D. can prove that he is likely to succeed on the merits — i.e., that the furloughs are a change in educational placement — then the district court arguably abused its discretion and a preliminary injunction should issue. United States v.
Under the IDEA, 20 U.S.C. § 1415® provides that “[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.” See also 34 C.F.R. § 300.518(a) (2006). A parent can request a due process hearing and invoke the stay-put provision when the State proposes to change the child’s educational placement. 34 C.F.R. § 300.507 (2006); 34 C.F.R § 300.503(a) (2006).
As we have recognized, the difficulty in determining whether there has been a change lies with the lack of a definition of “current educational placement” within the IDEA. L.M. v. Capistrano Unified Sch. Dist.,
We have addressed changes in educational placement under the IDEA only on one prior occasion. In Johnson ex rel. Johnson, plaintiffs parents filed suit on behalf of their autistic child when he turned three and was to be transferred between different educational agencies.
Without a definition of educational placement in the statute or any binding precedent, we must “find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested.” United States v. Alghazouli,
We also look to Congress’s overall expressed intent in the statute. Congress has been very clear about stating its overarching goals in relation to the IDEA. Part of Congress’s concern was that “children were excluded entirely from the public school system and from being educated with their peers.” 20 U.S.C. § 1400(c)(2)(B) (2006). To alleviate that, disabled children were to have “access to the general education curriculum in the regular classroom, to the maximum extent possible.” § 1400(c)(5)(A). We extract from the statute that the overarching goal of the IDEA is to prevent the isolation and exclusion of disabled children, and provide them with a classroom setting as similar to non-disabled children as possible.
The agency’s implementation of the statute provides further insights and supports the idea that placement relates to the classroom setting. The “continuum of alternative placements” includes “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” 34 C.F.R. § 300.115(b)(1) (2006). The main concern with placement is “mainstreaming” disabled children and the regulations provide that disabled children are to be educated “[t]o the maximum extent appropriate ... with children who are nondisabled.” 34 C.F.R. § 300.114(a)(2)(I) (2006). This reasonable agency interpretation of the IDEA is entitled to deference. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
Other Circuits have also attempted to divine the meaning of “current educational placement.” The leading case is Concerned Parents & Citizens for Continuing Educ. at Malcolm X (PS 79) v. New York City Bd. of Educ.,
The Fourth Circuit has also performed a more recent extensive analysis of the meaning of current educational placement under the IDEA. A.W. ex rel. Wilson v. Fairfax County Sch. Bd.,
Other circuit courts have adopted similar definitions to the Second and Fourth Circuits’ definitions using similar reasoning. See, e.g., DeLeon v. Susquehanna Cmty. Sch. Dist.,
Based on Supreme Court case law, Congress’s express intent in the statute, the agency’s implementing regulations, and sister circuits’ decisions, we hold that “educational placement” means the general educational program of the student. More specifically we conclude that under the IDEA a change in educational placement relates to whether the student is moved from one type of program — i.e., regular class — to another type — i.e., home instruction. A change in the educational placement can also result when there is a significant change in the student’s program even if the student remains in the same setting. This determination is made in light of Congress’s intent to prevent the singling out of disabled children and to “mainstream” them with non-disabled children.
Following this definition, Hawaii’s teacher furloughs and concurrent shut down of public schools is not a change in the educational placement of disabled children. Similar to the children in Concerned Parents, the children here stay in the same classification, same school district, and same educational program. The children have not been reclassified with different handicaps. The children continue to attend the same school, have the same teachers, and stay in the same classes. The educational setting of the disabled children remains the same post-furloughs.
When Congress enacted the IDEA, Congress did not intend for the IDEA to apply to system wide administrative decisions. Hawaii’s furloughs affect all public schools and all students, disabled and non-disabled alike. An across the board reduction of school days such as the one here does not conflict with Congress’s intent of protecting disabled children from being singled out. In comparison to cases in which a child is singled out in relation to her peers, the furlough days do not remove the plaintiffs from the regular classroom setting anymore than they do the other children. Disabled children are not singled out for furlough days. To the extent possible under the new school cal
In Tilton, disabled children were transferred from a year-round school to 180-day programs.
Finally, plaintiffs argue that because their current IEPs are their current educational placement and assume a five day school week, the reduction of the school week constitutes a change in the general educational program of the student. While they certainly assume some five day weeks, the IEPs also assume that there are some four day weeks when there are federal and state holidays. Those four day weeks are not mentioned explicitly in the IEPs. The four day weeks created by the furloughs are no different and do not constitute changes in N.D.’s educational program.
Our conclusion does not mean, however, that States and school boards can make any administrative change, in terms of cutting school days, without triggering the stay-put provisions. Our holding is that under the facts of this case § 1415(j) is not triggered. Nor does our conclusion leave the parents of disabled children with no means of redress. N.D.’s claim is more properly characterized as a “material failure to implement the IEP.” Van Duyn v. Baker Sch. Dist. 5J,
We affirm the order of the district court denying plaintiffs motion for a preliminary injunction.
AFFIRMED.
Notes
. An individual educational program is a written statement that is developed for each disabled child and includes (1) information on the child’s present level of academic achievement and functional performance; (2) a statement of annual goals and how they will be measured; (3) information on what special education services will be provided to the child; (4) an explanation of the extent to which the child will not be in class with nondisabled children; (5) statement of any accommodations necessary to measure academic achievement; and (6) the date services are to begin for the child and the approximate frequency, location, and duration of those services. 20 U.S.C. § 1414(d) (2006); L.M. v. Capistrano Unified Sch. Dist.,
. District Judge Ezra was the presiding judge for the temporary injunction motion. On November 3, 2009, Senior Circuit Judge Tashima was designated the United States District Judge temporarily for the District of Hawaii for this case. Judge Tashima presided at the preliminary injunction hearing.
. We look at state law to construe contracts. See Island Ins. Co., Ltd. v. Hawaiian Foliage & Landscape, Inc.,
. Judge Tashima ruled from the bench and issued only an oral opinion.
. Even if we were to hold that the stay-put provision automatic injunction standard is the relevant test, we would still have to determine the initial question of whether or not the stay-put provision even applied. This determination is the exact same determination as to whether the plaintiff is likely to succeed on the merits in this case, addressed infra IV.C.
. Hawaii alleges that the injunction is mandatory and we should apply the corresponding heightened standard for granting a mandatory injunction. A prohibitory injunction maintains the status quo whereas a mandatory injunction "goes well beyond simply main-taming the status quo pendente lite [and] is particularly disfavored.” Stanley v. Univ. of S. California,
. N.D. submitted additional declarations regarding the harm suffered by the children on appeal and asked for the Court to take judicial notice of them. We decline to do so. We view only the district court record on appeal. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir.2003). Judicial notice is only appropriate for matters “ 'generally known within the territorial jurisdiction of the [ ] court’ or ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.' " Jespersen v. Harrah's Operating Co., Inc.,
. N.D.'s IEP provided for various services. Some were to be measured by the amount of instruction (in minutes or hours) per week, month, or quarter. The only daily services provided were the use of visual aids and schedules, a sensory diet, and a daily communication log between school and home for all providers working with N.D.
. Tilton suggests that there is an exception to the IDEA for changes in educational placement that are a result of fiscal policy. Tilton,