N. D.; A. U.; C. K.; C. J.; M. D.; B. A.; G. S.; T. F.; J. K., disabled minors, through their parents acting as guardians ad litem, Plaintiffs-Appellants, v. STATE OF HAWAII DEPARTMENT OF EDUCATION, Defendant-Appellee.
No. 09-17543
D.C. No. 1:09-cv-00505-AWT-BMK
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed April 5, 2010
Before: Jerome Farris, Dorothy W. Nelson and Carlos T. Bea, Circuit Judges.
5167
Appeal from the United States District Court for the District of Hawaii
A. Wallace Tashima, Senior Circuit Judge, Presiding
Argued and Submitted February 10, 2010—Honolulu, Hawaii
Opinion by Judge Farris
COUNSEL
Carl M. Varady, Honolulu Hawaii; Stanley E. Levin and Susan K. Dorsey, Levin Education Access Project, Honolulu, Hawaii, for the plaintiffs-appellants.
Mark J. Bennett, Attorney General of Hawaii, and Dierdre Marie-Iha and Holly Shikada, Department of the Attorney General, Honolulu, Hawaii, for the defendant-appellee.
OPINION
FARRIS, Senior Circuit Judge:
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,
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 non-disabled alike, would not attend school on those Fridays. The
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.1 Along with this request, N.D. invoked the stay-put provisions of the IDEA. See
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
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 furloughs as they affect the plaintiffs. Prior to the hearing, N.D. submitted evidence as to the harm suffered by the disabled children as a result of the first several furlough days. Hawaii submitted evidence that it was undertaking efforts to provide the disabled children with alternate services consistent with their IEPs.
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, 99 F.3d 344, 347 (9th Cir. 1996).
The HSTA is necessary if complete relief cannot be granted without it.
[1] 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, 30 P.3d 895, 917 (Haw. 2001).3
[2] 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.
[3] Turning to the alternate test, the HSTA could be a necessary party if it claims a legally protected interest. The HSTA does not have a legally protected interest here. The negotiated agreement provides simply that Hawaii “may [ ] implement furloughs.” (emphasis added). The furloughs are at the State‘s option, not the teachers‘. If Hawaii had decided not to implement the furloughs then the teachers would have had to show up for work as usual. The HSTA interest was an iron-clad guarantee of no layoffs. This guarantee gave the State the option to furlough teachers. That interest is not affected regardless of whether the furloughs were implemented. The HSTA is not a necessary party and does not have to be joined.
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., 111 F.3d 678, 681 (9th Cir. 1997).
[4] 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.
[R]ecognizes the traditionally strong state and local interest in education, allows for the exercise of dis-
cretion 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, 494 F.3d at 1167. However, exhaustion is not required if “it would be futile or offer inadequate relief, or if the agency has adopted a policy or pursued a practice of general applicability that is contrary to the law.” Doe, 111 F.3d at 681 (quotation marks and citations omitted); see Kutasi, 494 F.3d at 1167-68.
[5] We have not yet addressed the issue of whether exhaustion is required in the context of a suit alleging violations of
[6] 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
IV.
The substantive issue is whether the district court erred in denying the preliminary injunction.4 We review the denial of the preliminary injunction for an abuse of discretion. Earth Island Institute v. United States Forest Service, 351 F.3d 1291, 1298 (9th Cir. 2003). Under the newly articulated abuse of discretion standard, we “determine de novo whether the trial court identified the correct legal rule to apply to the relief requested.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). A district court that applied the incorrect legal standard necessarily abused its discretion. Id.
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, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008)).
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.
[7] First, N.D. argues that the stay-put provision‘s automatic injunction should apply instead of the balancing test required for preliminary injunctions. We find this argument unpersuasive. The preliminary injunction would order the DOE to recognize the invocation of the stay-put provisions. The alleged violation is that Hawaii is not providing the pro-
[8] N.D. relies on Joshua A v. Rocklin Unified Sch. Dist., 559 F.3d 1036 (9th Cir. 2009) to make the argument that the automatic injunction should apply. Joshua A. does not apply in this instance. In Joshua A., 559 F.3d at 1037, the party presented its motion for stay-put directly to the Court of Appeals. The Court was ruling on the substance of the motion itself. Here, the motion is for a preliminary injunction that affects a stay-put invocation, not the stay-put invocation itself. Cf. Johnson ex rel. Johnson v. Special Educ. Hearing Office, State of California, 287 F.3d 1176, 1180 (9th Cir. 2002) (per curiam) (finding the automatic provision did not apply when the plaintiff sought an injunction for a claim regarding the validity of an existing stay-put order). The district court did not err in considering all factors of the preliminary injunction test.5
B.
We now turn to the four factors of the preliminary injunction test and evaluate them one-by-one.6 The district court
found that there was a high likelihood that plaintiffs would suffer irreparable harm. This finding was based on declarations submitted by N.D. detailing the injuries their children had suffered. N.D. demonstrated regression in his behavior, increased difficulty with activities, and outbursts of frustration and violence. The other children showed regression in behavior leading to increased aggression. To counter the allegations of harm, Hawaii submitted numerous declarations outlining the steps they were taking to minimize the disruption that the furloughs were causing. This included measures to reschedule IEP services. Specific steps were taken for the individual children as well. For example, there were proposals to extend N.D.‘s school day by eighty minutes for the four days during furlough weeks or offer some IEP services in N.D.‘s home. The State‘s declarations also indicated that N.D. and the other children were not exhibiting any changes in behavior.
[9] The declarations from the children documented their actual behavior following the furloughs, and included observations from the children‘s parents and from special education teachers.7 In contrast, the declarations from the State were all
attempted ameliorative steps or were vague. Although the State submitted numerous declarations, it is hard to see how the district court abused its discretion. Based on the evidence presented to the district court, it was reasonable for the court to conclude that the furloughs would cause irreparable harm.
[10] 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.”
[11] 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
C.
[12] 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
[13] Under the IDEA,
[14] 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., 556 F.3d 900, 902 (9th Cir. 2009), cert. denied 130 S. Ct. 90 (2009). We have interpreted “current educational placement” to mean “the placement set forth in the child‘s last implemented IEP.” Id. We
We have addressed changes in educational placement under the IDEA only on one prior occasion. In Johnson ex rel. Johnson, plaintiff‘s parents filed suit on behalf of their autistic child when he turned three and was to be transferred between different educational agencies. Id. at 1181. Plaintiffs alleged that under “stay-put” their child was entitled to the “exact same program and vendors” that were provided previously. Id. at 1179. We held that the IDEA does not require the exact same vendors to provide the services and transfer of the child was appropriate because the new educational agency could “meet the requirements of the ‘stay put’ provision by providing comparable educational placement.” Id. at 1181. Johnson ex rel. Johnson provides little guidance in this case. Johnson ex rel. Johnson dealt with an individual child and his transfer between agencies. Id. This case deals with a state wide systematic change that affects all school children. Johnson ex rel. Johnson also dealt only with a change in vendors. Id. In this instance, there is no change in vendors, only a shortening of the school year.
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, 517 F.3d 1179, 1184 (9th Cir. 2008) (quotation marks and citations omitted), cert. denied 129 S. Ct. 237 (2008).
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.”
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.”
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., 629 F.2d 751 (2d Cir. 1980). In Concerned Parents, the Second Circuit was faced with the shut down of one public school and the transfer of all handicapped children at that school to another school. Id. at 752. The court considered the stay-put provision of the IDEA‘s predecessor. The court considered the way the statute used the term “educational placement,” the legislative history, and the implementing regulations. Id. at 754. The court held that “educational placement” referred only to “the general educational program in which the handicapped child is placed.” Id. at 756. The children‘s placements were not changed because they “remain[ed] in the same classification, the same school district, and the same type of educational program special classes.” Id. As an example, the court indicated that a transfer of a disabled child from a special class in a regular school to a special school would be a change in educational placement. Id. at 754.
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., 372 F.3d 675 (4th Cir. 2004). After looking at Supreme Court cases, the statute, implementing regulations, and other Circuits’ cases, the court concluded that educational placement meant “the overall instructional setting in which the student receives his education.” Id. at 683. A.W. ex rel Wilson also dealt with the transfer of an individual student between
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., 747 F.2d 149, 153-54 (3d Cir. 1984) (noting that the stay-put provision “does not entitle parents to the right to demand a hearing before a minor decision alters the school day of their children” and finding that a change in transportation services was not a change in placement); White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 380 (5th Cir. 2003) (placement does not mean a “particular school,” and instead means “a setting“); Tilton v. Jefferson County Bd. of Educ., 705 F.2d 800, 803-04 (6th Cir. 1983) (distinguishing Concerned Parents in finding a change in placement when students were transferred from a year-round school to a 180-day program); Bd. of Educ. of Cmty. High Sch. Dist. No. 218, Cook County, Ill. v. Ill. State Bd. of Educ., 103 F.3d 545, 549 (7th Cir. 1996) (applying a fact-driven approach and finding that expulsion was a change in educational placement but when fiscal concerns cause a student to be transferred, the focus is on the child‘s general educational program); Hale ex rel. Hale v. Poplar Bluff R-I Sch. Dist., 280 F.3d 831, 833-34 (8th Cir. 2002) (per curiam) (change from home to school was a change in placement); Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1582-83 (D.C. Cir. 1984) (change in feeding treatment not a change in placement).
[15] 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
[16] 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 calender, the disabled children are still “mainstreamed” with regular children at school. To allow the stay-put provisions to apply in this instance would be essentially to give the parents of disabled children veto power over a state‘s decisions regarding the management of its schools. The IDEA did not intend to strip administrative powers away from local school boards and give them to parents of individual children, and we do not read it as doing so.
In Tilton, 705 F.2d at 804, disabled children were transferred from a year-round school to 180-day programs. The court ruled that such a change constituted a change in educational placement. Id. This case is different, as the Sixth Circuit recognized, because year-round school versus the 180-day school reflects two completely different educational programs. The two programs were not comparable. Here, however, the cut in the number of days does not change the model of education, and the educational setting and program pre- and post-furlough are comparable.9
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.
[17] We affirm the order of the district court denying plaintiff‘s motion for a preliminary injunction.
AFFIRMED.