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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-2348 <br> <br>            PAUL VERHOEVEN, AS PARENT AND NEXT FRIEND <br>               OF PAUL ("P.J.") VERHOEVEN, A MINOR, <br>            DONNA VERHOEVEN, AS PARENT AND NEXT FRIEND <br>               OF PAUL ("P.J.") VERHOEVEN, A MINOR, <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                   BRUNSWICK SCHOOL COMMITTEE, <br> <br>                       Defendant, Appellee. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>             [Hon. Gene Carter, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                   Hill, Senior Circuit Judge, <br> <br>                    and Boudin, Circuit Judge. <br> <br>                      _____________________ <br> <br>     Richard L. O'Meara, with whom Michael D. Traister and Murray, <br>Plumb & Murray were on brief, for appellants. <br>     Amy K. Tchao for appellee. <br> <br> <br>                       ____________________ <br> <br>                       September 21, 1999 <br>                       ____________________

          TORRUELLA, Chief Judge.  Plaintiffs-appellants Paul and <br>Donna Verhoeven ("the Verhoevens") appeal the district court's <br>denial of their motion for an automatic preliminary injunction <br>compelling defendant-appellee Brunswick School Committee <br>("Brunswick") to fund their son P.J.'s interim placement in a <br>private school during the pendency of the Verhoevens' challenge to <br>P.J.'s educational placement in the Brunswick, Maine public school <br>system.  Although we disagree with the district court's <br>determination that the Verhoevens' motion was moot, we nonetheless <br>affirm the denial of that motion. <br>                            BACKGROUND <br>I.  The Individuals with Disabilities Education Act <br>          Section 1415 of the Individuals with Disabilities <br>Education Act ("IDEA"), 20 U.S.C.  1400 et seq., requires state and <br>local educational agencies that receive federal assistance for the <br>education of children with disabilities to establish particular <br>procedural safeguards with respect to the provision of a "free <br>appropriate public education" for those children.  See 20 U.S.C. <br> 1415(a).  The "free appropriate public education" required by the <br>IDEA is tailored to the unique needs of the child through the <br>implementation of an "individualized education program" ("IEP").  <br>See 20 U.S.C.  1401(8); 20 U.S.C.  1414.  Each child's IEP must <br>be reviewed annually and revised when appropriate.  See 20 U.S.C. <br> 1414(d)(4). <br>          If the parents of the child object to the child's <br>placement, they are entitled to file a complaint with the <br>educational agency and to have that complaint resolved at "an <br>impartial due process hearing."  20 U.S.C.  1415(f).  Any party <br>aggrieved by the findings and decision resulting from the <br>administrative hearing may then bring a civil action in state or <br>federal court.  See 20 U.S.C.  1415(i)(2).  Section 1415(j) <br>provides that "during the pendency of any proceedings conducted <br>pursuant to this section, unless the State or local educational <br>agency and the parents otherwise agree, the child shall remain in <br>the then-current educational placement of such child."  20 U.S.C. <br> 1415(j).  Because this subsection is designed to preserve the <br>status quo pending resolution of challenge proceedings under the <br>IDEA, it is commonly referred to as the "stay put" provision. <br>II.  Factual and Procedural Background <br>          P.J. Verhoeven has been identified as a student with a <br>disability under federal and Maine special education laws.  Because <br>the Verhoevens reside in Brunswick, Maine, the Brunswick School <br>Committee is the local education agency responsible for providing <br>P.J. a free appropriate public education.  During the 1996-97 school <br>year, P.J. was a seventh grade student placed under an IEP at <br>Brunswick Junior High School.  At the end of the school year, P.J.'s <br>Pupil Evaluation Team ("PET") proposed an eighth grade IEP for P.J. <br>at Brunswick Junior High School for the 1997-98 school year.  The <br>Verhoevens, unhappy with P.J.'s similar seventh grade placement, <br>objected and requested an administrative due process hearing to <br>challenge the proposed IEP. <br>          Before the administrative hearing regarding the challenge <br>occurred, Brunswick and the Verhoevens resolved the dispute by <br>entering into a settlement agreement.  In that agreement, Brunswick <br>and the Verhoevens agreed to temporarily place P.J. at the Southern <br>Maine Learning Center through the end of the 1997-98 school year.  <br>The parties agreed that the PET would evaluate P.J.'s progress at <br>the end of the school year and make a determination at that time <br>regarding P.J.'s placement for the 1998-99 school year.  The parties <br>agreed that "[t]he purpose of this temporary placement is to use the <br>1997-1998 school year to effectively transition P.J. from the junior <br>high school to the high school setting at the Brunswick High School <br>for the 1998-1999 school year."  The agreement then expressed the <br>parties' intent:  (1) that P.J. would return to the Brunswick public <br>school system for the 1998-99 year, and (2) that the SMLC placement <br>was a temporary placement only.  The agreement also provided for <br>costs and attorneys' fees to the Verhoevens and dismissal of their <br>due process challenge to the IEP.  P.J.'s PET met on October 2, 1997 <br>and revised his IEP to change his placement for the 1997-98 school <br>year to SMLC. <br>          As contemplated by the agreement, P.J. attended SMLC <br>during the 1997-98 school year, and P.J.'s PET met on June 1, 1998 <br>to determine P.J.'s IEP for the 1998-99 school year.  At that <br>meeting, the PET determined that P.J.'s ninth grade placement would <br>be at Brunswick High School.  After investigating the placement, the <br>Verhoevens challenged it on July 20, 1998 by requesting an <br>administrative due process hearing.  The Maine Department of <br>Education appointed Carol Lenna as the hearing officer and scheduled <br>an administrative hearing for September 8, 1998. <br>          The parties could not agree on where P.J. should be <br>placed during the pendency of the Verhoevens' challenge.  The <br>Verhoevens contended that P.J. should "stay put" at SMLC at <br>Brunswick's expense, while Brunswick maintained that P.J. should <br>attend Brunswick High School.  The issue was then submitted to the <br>hearing officer for resolution.  The Verhoevens now characterize <br>this submission as the pursuit of a reviewable administrative ruling <br>on the interim placement issue, while Brunswick claims that the <br>parties agreed at a pre-hearing conference on August 13, 1998 to <br>accept as final the hearing officer's decision on the interim <br>placement issue.  For whatever purpose it was sought, the hearing <br>officer issued her "stay put" decision in a letter dated August 28, <br>1998, determining that P.J.'s placement pending the outcome of due <br>process proceedings would be Brunswick High School. <br>          Unhappy with this result, the Verhoevens filed a Verified <br>Complaint and Motion for Automatic Preliminary Injunction with the <br>district court.  The case was assigned to United States District <br>Judge Gene Carter.  In their complaint, the Verhoevens sought relief <br>from the hearing officer's "stay put" decision in the form of a <br>preliminary injunction requiring Brunswick to provide funding for <br>P.J.'s placement at SMLC "pending the completion of due process <br>proceedings" challenging the June 1998 placement decision.  Before <br>the district court ruled on the request for a preliminary <br>injunction, the hearing officer issued her administrative due <br>process decision.  On October 2, 1998, the hearing officer denied <br>the Verhoevens' challenge to the IEP and ordered P.J. to be placed <br>at Brunswick High School. <br>          On October 14, 1998, Judge Carter denied the Verhoevens' <br>motion for an injunction as moot.  The court found that the <br>Verhoevens' entitlement to a "stay put" injunction became moot "by <br>virtue of the hearing officer's decision dated October 2, 1998 <br>deciding all issues submitted to the hearing officer."  The court <br>went on to find that the parties agreed to submit the "stay put" <br>issue to the hearing officer for resolution.  The court then <br>concluded that, because the Verhoevens agreed to submit that issue <br>to the hearing officer for resolution, the case falls within an <br>exception to the "stay put" provision for when the parties <br>"otherwise agree" on a "stay put" placement.  Finally, the court <br>stated that whatever interests the Verhoevens had in seeking review <br>of the hearing officer's placement decision fell outside the <br>parameters of the present complaint and should be pursued by filing <br>a separate action. <br>          On October 30, 1998, the Verhoevens filed the present <br>appeal of the district court's denial of their request for interim <br>injunctive relief.  Also on October 30, 1998, the Verhoevens filed <br>a complaint for review of the hearing officer's October 2, 1998 <br>order in the State of Maine Superior Court for Cumberland County.  <br>Brunswick subsequently removed the complaint to the United States <br>District Court for the District of Maine, and the case was assigned <br>to Judge Carter.  To date, the case before Judge Carter appealing <br>the hearing officer's due process decision has not been resolved. <br>                            DISCUSSION <br>I.  The Standard of Review <br>          Due in part to ambiguity in the district court's order, <br>the parties disagree about the appropriate standard of review.  The <br>Verhoevens argue that the district court's order denying their <br>request for injunctive relief as moot must be reviewed de novo <br>because the mootness of the request is an issue of law.  The <br>Verhoevens also cite two cases for the proposition that review of <br>the denial of a "stay put" injunction is plenary, because the <br>entitlement to an automatic injunction under the "stay put" <br>provision is a question of law.  See Woods v. New Jersey Department <br>of Education, 20 IDELR 439, 440 (3d Cir. 1993) (unpublished decision <br>engaging in plenary review of the issue of whether a particular <br>educational placement is the student's "current educational <br>placement" under the "stay put" provision); Leonard v. McKenzie, 869 <br>F.2d 1558, 1564 (D.C. Cir. 1989) (reviewing de novo the denial of <br>a "stay put" injunction on the merits). <br>          Brunswick responds by arguing that the standard of review <br>of a district court's denial of a request for a preliminary <br>injunction is abuse of discretion.  See, e.g., Starlight Sugar, Inc. <br>v. Soto, 114 F.3d 330, 331 (1st Cir. 1997) (reviewing  issuance of <br>a preliminary injunction under a "deferential" standard, such that <br>the court will not intervene absent a showing that the lower court <br>"misapprehended the law or committed a palpable abuse of <br>discretion").  Brunswick also cites cases of its own for the <br>proposition that the applicable standard of review for "stay put" <br>orders is abuse of discretion.  See St. Tammany Parish School Bd. <br>v. Louisiana, 142 F.3d 776, 782-83 (5th Cir.) (reviewing orders <br>relating to placement during the pendency of the litigation for <br>abuse of discretion), cert. dismissed, 142 L.Ed.2d 490 (1998);  <br>Susquenita School Dist. v. Raelee S., 96 F.3d 78, 81 (3d Cir. 1996) <br>(reviewing the district court's "stay put" order for abuse of <br>discretion). <br>          In the present case, the district court did not purport <br>to reach the merits of the "stay put" dispute; it denied the motion <br>as moot.  However, the district court then appeared to reach the <br>merits of the "stay put" issue in finding that "this case falls <br>within the exception to the automatic 'stay put' provision" of 20 <br>U.S.C.  1415(j).  The district court concluded that because the <br>Verhoevens agreed to submit the "stay put" issue to the hearing <br>officer, they "otherwise agree[d]" to depart from the "stay put" <br>placement during the pendency of the proceedings.  Exactly how this <br>finding and conclusion lead to or flow from a mootness determination <br>is not explained. <br>          As a result of this ambiguity, each party offers various <br>versions of what the district court might have ruled.  We address <br>these possibilities in turn, using varying standards of review.  To <br>the extent that what we are reviewing is the district court's <br>determination that the Verhoevens' request is moot, we review de <br>novo.  See In re Arnold & Baker Farms, 85 F.3d 1415, 1419 (9th Cir. <br>1996) ("Mootness is a jurisdictional issue which we review de <br>novo."), cert. denied, 519 U.S. 1054 (1997); F.E.R. v. Valdez, 58 <br>F.3d 1530, 1532-33 (10th Cir. 1995) ("We review the question of <br>mootness de novo as a matter of federal jurisdiction.").  And to the <br>extent that what we are reviewing is a legal issue under the "stay <br>put" provision, such as the determination of what constitutes P.J.'s <br>"current educational placement," we also review de novo.  See <br>Leonard, 869 F.2d at 1564.  But to the extent that we are reviewing <br>the district court's determinations regarding the applicability of <br>the "stay put" provision that constitute mixed questions of law and <br>fact, our review is more deferential.  In the absence of a mistake <br>of law, we must accept the district court's resolution of mixed <br>questions so long as the court's conclusions are not clearly <br>erroneous on the record as a whole.  See Hampton School District v. <br>Dobrowolski, 976 F.2d 48, 52 (1st Cir. 1992) (applying this standard <br>in reviewing a district court's determination of whether an <br>educational placement was appropriate as a mixed question of law and <br>fact). <br>II.  The District Court's Mootness Determination <br>          The Verhoevens raise -- and challenge -- two separate <br>bases upon which the district court could have relied in finding the <br>Verhoevens' request for a "stay put" injunction to be moot.  First, <br>they argue that the district court could have found that the request <br>was moot because the Verhoevens only requested "stay put" relief <br>during the pendency of administrative proceedings, which ended with <br>the hearing officer's decision on October 2, 1999.  Second, they <br>argue that the district court could have found that the Verhoevens <br>forfeited their right to judicial review of the "stay put" issue by <br>submitting the issue to a hearing officer. <br>          A.  Duration of the Relief Requested <br>          Brunswick and the Verhoevens both suggest that the <br>district court may have found that the request was moot because the <br>Verhoevens only requested relief during the pendency of the <br>administrative proceedings, and not through any judicial action <br>appealing those proceedings.  In both their Verified Complaint and <br>their Motion for an Automatic Preliminary Injunction, the Verhoevens <br>requested that P.J. be allowed to remain at SMLC "pending the <br>completion of due process proceedings to challenge" Brunswick's <br>placement decision.  <br>          Nothing in the "stay put" provision limits the <br>availability of "stay put" injunctions to the duration of the <br>administrative hearings.  As noted by the Verhoevens, section <br>1415(j) provides for "stay put" placement "during the pendency of <br>any proceedings conducted pursuant to this section."  Because "this <br>section" -- section 1415 -- makes available both administrative <br>proceedings and judicial actions to appeal the administrative <br>determination, subsection 1415(j) provides for "stay put" placement <br>throughout both the administrative and judicial proceedings <br>challenging a placement decision.  See Doe v. Brookline School <br>Committee, 722 F.2d 910, 915 (1st Cir. 1983) ("'[stay put provision] <br>is designed to preserve the status quo pending resolution of <br>administrative and judicial proceedings under the Act.'"), quoting <br>Doe v. Anrig, 692 F.2d 800, 810 (1st Cir. 1982), disagreed with on <br>other issues by Doe v. Brookline School Committee, 722 F.2d 910; see <br>also Honig v. Doe, 484 U.S. 305, 312 (1988).   <br>          Brunswick argues that the availability of "stay put" <br>relief during judicial proceedings is of no consequence because the <br>Verhoevens did not ask for it.  We do not agree that the Verhoevens <br>failed to ask for such relief.  The Verhoevens asked for "stay put" <br>relief under  1415(j), which provides for relief during both <br>administrative and judicial proceedings, and they asked for "stay <br>put" relief pending the completion of "due process proceedings," <br>which are not limited to administrative due process hearings in <br>either the statute or the complaint.  In the Verhoevens' motion, <br>they cited Anrig for its statement that the "stay put" provision is <br>designed to preserve the status quo during administrative and <br>judicial proceedings under the IDEA.  If there had been any <br>confusion or ambiguity as to what the Verhoevens were requesting, <br>it was surely eliminated when the Verhoevens filed their reply to <br>Brunswick's objections to the request for a preliminary injunction.  <br>In that October 5, 1998 reply, the Verhoevens made clear that they <br>were requesting injunctive relief in the form of "stay put" <br>placement during both administrative due process hearings and any <br>judicial appeal of the hearing officer's decision.  Thus, it was <br>error for the district court to deny the Verhoevens' request as moot <br>to the extent that it did so because it believed that the Verhoevens <br>only sought the narrower form of relief.   <br>                        B.  The Effect of Allowing the Hearing Officer to Rule <br>              on the "Stay Put" Issue <br>          The Verhoevens offer an alternative interpretation of the <br>district court's finding of mootness: the district court may have <br>found that the Verhoevens' motion was moot because they forfeited <br>their right to a judicial determination of the "stay put" issue by <br>first submitting the issue to a hearing officer.  The Verhoevens <br>derive this interpretation from the district court's finding that <br>the Verhoevens' decision to submit the "stay put" issue to the <br>hearing officer for resolution placed this case within the exception <br>to the "stay put" provision for when the educational agency and the <br>parents "otherwise agree." <br>          This explanation of the district court's mootness <br>determination is lacking.  A finding that the Verhoevens' actions <br>amounted to an agreement that fits within the exception to the "stay <br>put" provision actually resolves the "stay put" injunction motion <br>on its merits; it does not render the motion moot.  Also, the <br>district court did not state that the motion was moot due to the <br>hearing officer's August 28, 1998 decision resolving the "stay put" <br>issue; it stated that the motion was moot due to the hearing <br>officer's October 2, 1998 decision, which resolved the overall <br>placement challenge.  Therefore, this proffered explanation could <br>not have been the basis for the district court's mootness <br>determination. <br>                        C.  Conclusions Regarding the Mootness of the <br>              Verhoevens' Request <br>          In sum, we cannot agree with the district court that the <br>Verhoevens' motion for a "stay put" injunction was mooted by the <br>hearing officer's October 2, 1998 decision on the merits of the <br>Verhoevens' placement challenge.  Nor do we find that the motion was <br>mooted by the hearing officer's August 28, 1998 "stay put" decision <br>in favor of Brunswick.  Therefore, the district court erred in <br>denying the Verhoevens' motion as moot. <br>III.  Merits of the Verhoevens' Request for a "Stay Put" Injunction <br>          As noted above, it appears that the district court <br>reached the merits of the Verhoevens' request for a "stay put" <br>injunction, despite its mootness conclusion.  Therefore, we treat <br>the district court's decision on the merits as an alternative ground <br>for the denial and review it accordingly.

                        A.  The District Court's Conclusion That the Parties <br>              Satisfied the Exception to the "Stay Put" Provision <br>              By "Otherwise Agree[ing]" to Allow the Hearing <br>              Officer to Choose the Interim Placement <br>          Even though the district court's findings and rationale <br>regarding mootness are somewhat murky, its ruling on the merits of <br>the injunction request could not be more clear.  The district court <br>concluded that because the Verhoevens agreed to submit the "stay <br>put" issue to the hearing officer, the case falls within the <br>"otherwise agree" exception to the "stay put" provision.  We do not <br>find this conclusion to be reversible error. <br>          As noted above, section 1415(j) provides that the interim <br>placement during proceedings challenging the child's regular <br>placement shall be the child's current educational placement, <br>"unless the . . . educational agency and the parents otherwise <br>agree."  20 U.S.C.  1415(j).  The district court found that <br>Brunswick and the Verhoevens "otherwise agree[d]" to let the hearing <br>officer determine the interim placement.  Nothing in section 1415(j) <br>requires the parties to "otherwise agree" on a particular interim <br>placement for the exception to apply; the exception apparently may <br>apply if the parties "otherwise agree" to let a third party decide <br>the interim placement.  The question is whether the parties in fact <br>did that here. <br>          There is no dispute that the parties submitted the <br>interim placement issue to the hearing officer, but that does not <br>necessarily mean that they agreed to let her choose the interim <br>placement within the meaning of the "otherwise agree" exception.  <br>There is a substantial difference between: (1) agreeing to allow the <br>hearing officer to choose the interim placement and thus opting out <br>of the "stay put" presumption under  1415(j), and (2) agreeing to <br>have the hearing officer, as an initial adjudicator, determine what <br>is the proper "stay put" placement under  1415(j).  The district <br>court found that the former occurred. <br>          Offering the affidavit of Carolyn Crowell, Brunswick's <br>Director of Special Services, Brunswick argued to the district court <br>that the parties agreed at an August 13, 1998 pre-hearing conference <br>on a process for determining the interim placement, thus satisfying <br>the "otherwise agree" exception.  Crowell declared that the parties <br>agreed to let the hearing officer resolve the "stay put" issue and <br>did so because of the rapidly approaching first day of school at <br>Brunswick High School.  Brunswick argued that the Verhoevens reneged <br>on this agreement by refusing to be bound by the hearing officer's <br>decision and by filing the motion for an injunction in district <br>court.  In response, the Verhoevens argued -- and currently argue -- <br>that they never agreed to be bound by or to forfeit review of the <br>hearing officer's interim placement decision.  We are faced with the <br>same dispute facing the district court:  one party (Brunswick) who <br>claims that the parties viewed the hearing officer as a third party <br>that they empowered to decide P.J.'s interim placement and one party <br>(the Verhoevens) who claims that they, at least, viewed the hearing <br>officer as merely the first adjudicator of the "stay put" issue. <br>          Confronted with this dispute, the district court sided <br>with Brunswick and found that the parties "otherwise agree[d]" to <br>let the hearing officer decide the interim placement, and we have <br>no basis for finding this determination to be clearly erroneous.  <br>As discussed above, in the absence of a mistake of law, we must <br>accept the district court's resolution of mixed questions of law and <br>fact so long as the court's conclusions are not clearly erroneous <br>on the record as a whole.  See Hampton School District, 976 F.2d at <br>52.  There is no claim that the district court made a mistake of law <br>in this context.  Rather, the Verhoevens' claim here is that the <br>district court found that the parties made an agreement which did <br>not in fact exist.  The existence of such an agreement is supported <br>by Crowell's affidavit, in which she stated that the parties agreed <br>on August 13, 1998 to allow the hearing officer to resolve the "stay <br>put" dispute due to the impending first day of school.   <br>          Context lends further support to this interpretation.  <br>The agreement to let the hearing officer resolve the issue was made <br>just before the school year was about to begin, seemingly to <br>facilitate a stable start to the school year for P.J.  Without a <br>definitive resolution, both sides would have faced the prospect of <br>court litigation as to the stay put issue.  Letting the hearing <br>officer settle the matter was a reasonable solution. <br>          The Verhoevens offered no evidence to show that this <br>agreement was not of the type envisioned by the "otherwise agree" <br>exception and merely asserted in their briefs that their <br>interpretation is the correct one.  Faced with competing <br>interpretations supported by the statements of the parties or their <br>representatives, the district court made a factual determination, <br>which we as an appellate court are in a "perilously poor position <br>to second-guess."  Rivera-Gmez v. Castro, 900 F.2d 1, 4 (1st Cir. <br>1990).  As a result, we do not find the district court's conclusion <br>regarding the existence of an agreement under section 1415(j) to be <br>clearly erroneous, and we therefore uphold the district court's <br>denial of the motion for an injunction. <br>                        B.  Leonard v. McKenzie and Temporary Placements as the <br>              "Current Educational Placement" Under 20 U.S.C. <br>               1415(j) <br>          Even if the district court had erred in finding that the <br>submission of the "stay put" issue to the hearing officer satisfied <br>the "otherwise agree" exception to the "stay put" presumption, we <br>would be inclined to uphold the district court's denial of the <br>Verhoevens' request for another reason.  The placement at SMLC -- <br>the placement that the Verhoevens believe should prevail during the <br>pendency of their challenge to the IEP returning P.J. to public <br>school -- was never intended to be anything more than a temporary <br>placement.  Ordering Brunswick to fund a private placement at SMLC <br>during the challenge to the IEP is not the type of maintenance of <br>the status quo that section 1415(j) envisions.  To the contrary, it <br>would be an extension of this temporary placement to a degree well <br>beyond the parties' intentions at the time of the 1997 settlement <br>agreement. <br>          The parties agreed in the 1997 settlement agreement to <br>temporarily place P.J. at SMLC "only through the end of the 1997- <br>1998 school year in June 1998."  They agreed that P.J.'s subsequent <br>placements would be determined at a later date, but they agreed that <br>the purpose of the temporary SMLC placement was to transition P.J. <br>to placement at Brunswick High School.  The parties then expressed <br>their expectation that P.J. would return to the Brunswick public <br>school system for the 1998-99 school year.  Under these <br>circumstances, it cannot be said that P.J.'s "current educational <br>placement" on July 20, 1998 -- the date the Verhoevens filed their <br>challenge to the IEP reached on June 1, 1998 -- was the recently <br>ended SMLC placement. <br>          A similar arrangement was presented in Leonard v. <br>McKenzie, 869 F.2d 1558 (D.C. Cir. 1989).  In that case, Brandon <br>Leonard was placed in Prospect Learning Center, a public elementary <br>school operated by the District of Columbia Public Schools ("DCPS").  <br>Brandon's parents challenged that placement, seeking placement at <br>the private Lab School of Washington.  Brandon's parents enrolled <br>him in the Lab School during the challenge proceedings.  A hearing <br>officer determined that both school programs were appropriate <br>placements, meaning that Brandon's placement should be the Prospect <br>Learning Center, but the hearing officer ordered DCPS to pay for <br>Brandon's placement in the Lab School for the 1985-86 school year <br>anyway due to a number of procedural violations committed by DCPS.  <br>In the order, the hearing officer stated that DCPS should plan for <br>Brandon's return to Prospect Learning Center or another public <br>school in the DCPS system for the 1986-87 school year. <br>          In July of 1986, DCPS placed Brandon at Prospect Learning <br>Center for the 1986-87 school year.  Brandon's parents immediately <br>requested a due process hearing to challenge that placement.  The <br>hearing officer then reaffirmed the earlier determination that <br>Prospect Learning Center was an appropriate placement and therefore <br>upheld DCPS's decision to place Brandon at Prospect Learning Center.  <br>The Leonards filed suit in federal district court, challenging the <br>hearing officer's placement decision.  The Leonards sought an <br>injunction compelling DCPS to pay Brandon's tuition at the private <br>Lab School during the litigation.  The district court denied the <br>request for injunctive relief during the litigation and later <br>affirmed the hearing officer's decision on the merits.   <br>          On appeal, the D.C. Circuit rejected the Leonards' claim <br>that the Lab School was Brandon's "current educational placement" <br>at the time the challenge was filed.  See id. at 1564.  The court <br>stated: (1) that it was clear to all parties that the Lab School <br>placement was for the 1985-86 school year only, and (2) that the <br>hearing officer encouraged the parties to prepare for a transition <br>back to Prospect Learning Center.  See id.  From this, the court <br>determined that the Leonards were on notice that the Lab School <br>would cease to be the "current educational placement" once the 1985- <br>86 school year ended.  See id.  Accordingly, the court declined to <br>compel DCPS to fund Brandon's interim placement at the Lab School <br>because the Lab School was not the proper "stay put" placement under <br>section 1415(j).  See id. <br>          The present situation is quite analogous to the situation <br>presented in Leonard.  Just as the hearing officer's statements in <br>Leonard put the parties on notice that the placement at the Lab <br>School was temporary and would cease at the end of the 1985-86 <br>school year, the parties' 1997 settlement agreement in the present <br>case made it quite clear that the SMLC placement was temporary and <br>would cease at the end of the 1997-98 school year.  In fact, that <br>was precisely the parties' intent.  And just as the D.C. Circuit <br>found that Brandon's placement at the Lab School was not the <br>"current educational placement" because it terminated at the end of <br>the 1985-86 school year, we are persuaded that we should hold <br>similarly that P.J.'s placement at SMLC was not the "current <br>educational placement" because it terminated at the end of the 1997- <br>98 school year. <br>          The policy behind section 1415(j) supports an <br>interpretation of "current educational placement" that excludes <br>temporary placements like P.J.'s SMLC placement.  Section 1415(j) <br>"is designed to preserve the status quo pending resolution of <br>administrative and judicial proceedings under the Act."  Anrig, 692 <br>F.2d at 810.  The preservation of the status quo ensures that the <br>student remains in the last placement that the parents and the <br>educational authority agreed to be appropriate.  However, in the <br>case of P.J.'s temporary placement at SMLC, Brunswick and the <br>Verhoevens never agreed that P.J. would be placed at SMLC beyond <br>June 1, 1998.  To the contrary, the parties expressly agreed that <br>P.J. would only be placed at SMLC during the 1997-98 school year.  <br>Therefore, to maintain P.J. at SMLC during the pendency of the <br>Verhoevens' challenge would actually change the agreed-upon status <br>quo, not preserve it.  Thus, because a reading of "current <br>educational placement" that includes the temporary SMLC placement <br>at issue here would thwart the purpose of section 1415(j), we <br>decline to adopt such a reading. <br>          We have addressed this issue at some length, even though <br>not dispositive here, because we think it important that parents be <br>given fair warning that an explicitly understood temporary placement <br>is at least a risky basis for claiming "stay put" protection.  <br>Still, we do not formally resolve the issue in the abstract; it is <br>not necessary to do so here, there are numerous factual variations <br>that could affect the outcome, and the law in this difficult area <br>is still evolving.  Of course, in the future the matter can be <br>resolved in relation to temporary placements by explicit language <br>in such an agreement designating the stay put placement.  <br>                        C.  Conclusions Regarding the Merits of the Verhoevens' <br>              Request <br>          In sum, we do not disturb the district court's conclusion <br>that the parties "otherwise agree[d]" to allow the hearing officer <br>to determine P.J.'s interim placement, and even if we did find this <br>conclusion to be in error, we would be reluctant to find that P.J.'s <br>"current educational placement" at the time of the challenge was his <br>recently-concluded temporary placement at SMLC.  Therefore, we hold <br>that the district court properly denied the Verhoevens' request for <br>a "stay put" injunction compelling Brunswick to fund an interim <br>placement at SMLC during the pendency of the Verhoevens' challenge <br>to the June 1, 1998 IEP.

                            CONCLUSION <br>          Based on the foregoing, we AFFIRM the district court's <br>denial of the Verhoevens' motion for an automatic preliminary <br>injunction.</pre>

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