                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 09-3741
                                     ____________

                           L.Y., on behalf of J.Y., and
                   ELYSIAN CHARTER SCHOOL OF HOBOKEN,

                                             Appellants

                                            v.

                        BAYONNE BOARD OF EDUCATION
                                ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 2-09-cv-04422)
                     District Judge: Honorable Stanley R. Chesler
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 16, 2010

    Before: FISHER and COWEN, Circuit Judges, and PRATTER,* District Judge.

                                 (Filed: June 10, 2010 )
                                     ____________

                              OPINION OF THE COURT
                                   ____________




      *
       Honorable Gene E.K. Pratter, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
PRATTER, District Judge.

       L.Y., on behalf of her son, J.Y., and Elysian Charter School of Hoboken appeal

from the Order of the United States District Court for the District of New Jersey denying

their motion for an injunction to entitle J.Y. to attend a private, out-of-district school with

educational programs for his learning disabilities during the pendency of a dispute with

the Bayonne Board of Education over J.Y.’s 2009-2010 Individualized Education

Program (“IEP”). We will affirm.

                                               I.

       As we write only for the parties, who are familiar with the factual context and

procedural history of the case, we will set forth only those facts necessary to our analysis.

       J.Y. is a 13-year-old boy living in Bayonne, New Jersey. In 2002, he began

attending Elysian Charter School of Hoboken (“Elysian”), located in Hoboken, New

Jersey. Elysian is a charter school financed from local tax levies and state and federal aid.

       In 2002, Elysian’s IEP team performed an evaluation of J.Y. and classified him as

having learning disabilities requiring special instruction. At that time, pursuant to the

Individuals with Disabilities Education Act (“IDEA”) and New Jersey state law, Elysian

developed an IEP for J.Y. that included special reading and language instruction. The

IEP Team at Elysian developed an IEP for J.Y. each year thereafter.

       In 2009, Elysian’s IEP Team determined that J.Y. should be placed at the

Community School, a private school for disabled children located outside of the Bayonne



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School District. The IEP Team included this placement in J.Y.’s IEP for the 2009-2010

academic year (the “June 9, 2009 IEP”), and J.Y.’s mother, L.Y., agreed in writing to this

placement on June 9, 2009. The IEP indicated that upon obtaining L.Y.’s signature, it

would be “implemented,” with the Community School placement beginning in September

2009.

        The Bayonne School District (“Bayonne”) did not participate in the creation of the

June 9, 2009 IEP. However, as required by New Jersey law, Elysian informed Bayonne

about the IEP. Exercising its statutory right to contest the Community School placement

because it is responsible for paying the requisite tuition, Bayonne initiated a due process

hearing with the Department of Education, claiming that an in-district school placement

would provide J.Y. with a free and appropriate public education in the least restrictive

environment among non-disabled children. L.Y. cross-petitioned on J.Y.’s behalf for a

“stay-put” order placing J.Y. at the Community School during the pendency of the

administrative proceedings. Her request was denied.

        L.Y. then filed a complaint in federal court, alleging violations of the IDEA. She

also requested an injunction requiring J.Y. to be placed at the Community School and

requiring Bayonne to pay his tuition. The District Court determined that J.Y. should

remain at Elysian during the pendency of the dispute, and denied L.Y.’s request for a

preliminary injunction.




                                             3
       Specifically, the District Court rejected L.Y.’s argument that J.Y.’s “current

education placement” under the IDEA was the Community School. The District Court

noted that at the time Bayonne initiated proceedings to contest the adequacy of the June 9,

2009 IEP, J.Y. was not receiving instruction under that IEP because he was not yet

attending the Community School, and the terms of the IEP did not call for that placement

to begin until September 2009. The District Court also rejected Appellants’ argument

that the IDEA’s “stay-put” provision empowers a school and a child’s parents to agree on

the appropriate educational placement while an IEP dispute is pending because

interpreting the “stay-put” provision in that way would negate Bayonne’s statutory right

to challenge the placement under New Jersey law. Finally, the District Court found that

L.Y. was not entitled to a preliminary injunction.

       L.Y. now appeals.

                                             II.

       The District Court exercised jurisdiction under 20 U.S.C. § 1415(i)(3) and 28

U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

       We exercise plenary review of whether the District Court applied the correct legal

standards under the IDEA in determining J.Y.’s then current educational placement. L.E.

v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006); Drinker by Drinker v.

Colonial School Dist., 78 F.3d 859, 865 (3d Cir. 1996) (holding that the question of what

constitutes a student’s “current educational placement” is one of law). We review the



                                             4
denial of a motion for a preliminary injunction for an “abuse of discretion, a clear error of

law, or a clear mistake on the facts.” Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153,

158 (3d Cir. 1999) (internal quotations and citation omitted).

                                             III.

       The IDEA requires that a state receiving federal education funding provide a “free

appropriate public education” (“FAPE”) to disabled children. 20 U.S.C. § 1412(a)(1).

School districts provide a FAPE by designing and administering a program of

individualized instruction that is set forth in an IEP. 20 U.S.C. § 1414(d). The IEP must

be reasonably calculated to enable the child to receive meaningful educational benefits in

light of the child’s intellectual potential. Shore Reg’l High Sch. Bd. of Ed. v. P.S., 381

F.3d 194, 198 (3d Cir. 2004) (internal quotations and citation omitted).

       The IDEA frequently has been described as a model of cooperative federalism.

Schaffer v. Weast, 546 U.S. 49, 52 (2005). It “leaves to the States the primary

responsibility for developing and executing educational programs for handicapped

children, [but] imposes significant requirements to be followed in the discharge of that

responsibility.” Bd. of Educ. v. Rowley, 458 U.S. 176, 183 (1982). To that end, the

IDEA requires that each state receiving federal funds ensure that state rules, regulations,

and policies conform to the purposes of the IDEA. 20 U.S.C. § 1407.

       Under New Jersey law, when a disabled student attends a charter school, that

school is responsible for providing special education services to that student, including



                                              5
working with a child’s parents to develop an IEP. N.J. Stat. Ann. § 18A:36A-11(b). The

school district where the child resides, however, bears fiscal responsibility for a child’s

special education services when the IEP requires placement at a private school. Id. For

that reason, New Jersey law provides that:

       Within 15 days of the signing of the individualized education plan, a charter
       school shall provide notice to the resident district of any individualized
       education plan which results in a private day or residential placement. The
       resident district may challenge the placement within 30 days in accordance
       with the procedures established by law.

Id.

A.     J.Y.’s “Stay-Put” Placement

       The IDEA states that “[d]uring the pendency of any proceedings conducted

pursuant to this section . . . the child shall remain in the then current educational

placement of such child.” 20 U.S.C. § 1415(j). This section of the IDEA is referred to as

the “stay-put” provision. The stay-put provision operates as an automatic preliminary

injunction. Drinker, 78 F.3d at 864.

       The IDEA does not define “current educational placement.” We have held that the

current educational placement “refers to the operative placement actually functioning at

the time the dispute first arises. If an IEP has been implemented, then that program’s

placement will be the one subject to the stay put provision.” Id. at 867 (quoting Thomas

v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir.1990)). If no IEP is in effect




                                               6
when the dispute arises, the stay-put placement is that under which the child is actually

receiving instruction at the time the dispute arises. Id.

       Appellants here argue that the only valid, functioning IEP in place at the time the

dispute arose was the June 9, 2009 IEP calling for J.Y.’s placement at the Community

School. Therefore, Appellants argue that the Community School is J.Y.’s stay-put

placement for the pendency of the underlying proceedings.

       While determining a child’s current educational placement at the time a dispute

begins may appear straightforward, in this case the determination is complicated by the

fact that J.Y.’s 2008-2009 school year ended on June 16, 2009. When Bayonne initiated

its challenge to the Community School placement on July 8, 2009, J.Y. was not actively

receiving instruction under either the most recent un-challenged IEP for the just

completed 2008-2009 school year, or the disputed upcoming June 9, 2009 IEP.

       Indeed, the June 9, 2009 IEP had not been implemented in any true sense. The

June 9, 2009 IEP called for J.Y.’s placement at the Community School to begin in

September 2009. Appellants cite to a New Jersey regulation providing that an IEP may

be implemented sooner where, as here, a parent agrees in writing. See N.J. Admin. Code

§ 6A:14-2.3(h)(2). However, this regulation, which does not require that an IEP be

implemented when a parent agrees in writing, must be read in conjunction with the

aforementioned New Jersey statute permitting resident school districts to object to private

placement determinations made by charter schools. If an IEP were considered



                                              7
“implemented” as soon as it was signed by the student’s parent, the school district’s right

to object in advance would be illusory. We decline to adopt any such interpretation of the

New Jersey laws at issue here, as we generally adhere to the principle that statutes relating

to the same subject matter should be construed harmoniously. See Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 879 (1994) (“[C]ourts should construe statutes . . . to

foster harmony with other statutory and constitutional law.”); Hernandez v. Kalinowski,

146 F.3d 196, 200 (3d Cir. 1998) (noting that when interpreting a statute, courts will look

to statutes on the same subject and the object and policy of the law).

       Neither the plain language of the IDEA, New Jersey laws implementing the IDEA,

nor our prior case law expressly cover the situation presented here. To endorse the plain

meaning of the statutory language, we can look to the purpose of the IDEA’s stay-put

provision if guidance is needed in interpreting its meaning and application here. Alcoa

Inc. v. United States, 509 F.3d 173, 180 (3d Cir. 2007) (“To resolve this ambiguity in the

language of the statute, we will turn to the congressional intent revealed in the history and

purpose of the statutory scheme.”)

       The stay-put provision “represents Congress’ policy choice that all handicapped

children, regardless of whether their case is meritorious or not, are to remain in their

current education placement until the dispute with regard to their placement is ultimately

resolved.” Drinker, 78 F.3d at 864. We have consistently stated that the purpose of the

stay-put provision is the preservation of the status quo during disputes about a child’s



                                              8
educational placement. Pardini, 420 F.3d at 190 (“In Drinker, we stressed the importance

of maintaining the status quo when identifying ‘the then current educational placement’

for purposes of the stay-put rule.”); J.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 272

(3d Cir. 2002) (“Stay-put orders are designed to maintain the status quo during the course

of proceedings.”); Drinker, 78 F.3d at 865 (“[T]he purpose of the ‘stay put’ is to preserve

the status quo of the child’s functioning placement and program.” (internal quotations and

citation omitted)).

       Because J.Y. was on summer break when this dispute arose, strictly speaking

neither Elysian nor the Community School actually represented J.Y.’s stay-put placement.

Nevertheless, we hold that having J.Y. remain at Elysian while the dispute with regard to

his placement is resolved hues closest to the plain meaning of the statutes as well as the

congressional intent of maintaining the status quo, inasmuch as J.Y. never attended the

Community School and never received instruction under the June 9, 2009 IEP. Placing

him at the Community School at this stage would not be consistent with the purpose of

the stay-put provision to maintain the status quo until the conclusion of the due process

hearings, during which J.Y.’s ultimate appropriate placement will be determined.

       Appellants argue that even if the Community School is not considered J.Y.’s then-

current placement, the stay-put provision empowers a school and a child’s parents to

agree on the appropriate placement while an IEP dispute is pending. Appellants cite to a

portion of Section 1415(j) of IDEA, which states that a child must stay in the “current



                                             9
educational placement” unless the state or Local Education Agency (“LEA”) and parents

agree to a different placement. 20 U.S.C. § 1415(j). Appellants argue that Elysian, and

not Bayonne, is the relevant LEA here because it is the entity with administrative control

over, and responsibility for, providing special education and related services to its

disabled students. In response, Bayonne argues that under New Jersey regulations,

charter schools are considered LEAs only for the limited purpose of applying for federal

funds. See N.J. Admin. Code § 6A:11-4.1 (“A charter school shall be a local education

agency only for the purpose of applying for Federal entitlement and discretionary

funds.”).

       Regardless of which entity is considered the LEA, Elysian and L.Y. cannot dictate

placement of J.Y. at the Community School over Bayonne’s objections. IDEA’s stay-put

provision should be read in harmony with N.J. Stat. Ann. § 18A:36A-11(b), which

permits a school district to object to a placement before a child is moved, especially given

the IDEA’s goal of cooperative federalism. See FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000) (noting that “it is a fundamental canon of statutory

construction that the words of a statute must be read in their context and with a view to

their place in the overall statutory scheme,” and that “[a] court must therefore interpret the

statute as a symmetrical and coherent regulatory scheme . . . and fit, if possible, all parts

into an harmonious whole . . .” (internal quotations and citations omitted)). Because

Section 1415(j) of IDEA does not anticipate a situation in which both a charter school and



                                              10
the school district have an interest in a child’s education placement, we do not construe

Section 1415(j) as conflicting with the application of N.J. Stat. Ann. § 18A:36A-11(b) to

this case.

B.     Appellants’ Motion for a Preliminary Injunction

       In order for a party’s request for a preliminary injunction to be granted, the party

must show (1) a reasonable probability of success on the merits, (2) that it will be

irreparably harmed if the injunction is not granted, (3) that the non-moving party will not

suffer greater harm if the injunction is granted, and (4) that the public interest at stake

favors the granting of an injunction. Child Evangelism Fellowship of New Jersey, Inc. v.

Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004). We have also made clear that

if the moving party fails to demonstrate either a likelihood of success or irreparable harm,

an injunction should not be granted. In re Arthur Treacher’s Franchisee Litig., 689 F.2d

1137, 1143 (3d Cir. 1982).

       The underlying issue in this case is whether the June 9, 2009 IEP will provide J.Y.

with a FAPE in the least restrictive environment. The District Court held that resolving

this issue is a fact-intensive inquiry, and that it could not conclude that L.Y. had

demonstrated a likelihood of success on the merits. On appeal, Appellants focus their

efforts on demonstrating irreparable injury, devoting scant attention to the likelihood of

success prong. Instead, they emphasize that L.Y. should not remain at the Eylsian school

during the pendency of this dispute. For its part, Bayonne contends that its proffered



                                              11
placement of J.Y. at another school in the Bayonne school district will provide J.Y. with a

placement in the least restrictive environment alongside non-disabled students. Bayonne

contends that the Community School, in contrast, cannot provide a FAPE to J.Y. because

it is a school comprised entirely of students classified with similar learning disabilities.

       Based on this record, we cannot say that the District Court abused its discretion in

denying injunctive relief because Appellants failed to carry their burden of proving a

reasonable probability of success on the merits. Because this failure is a sufficient basis

for the denial of a preliminary injunction, it is unnecessary for us to reach their remaining

arguments. Id.

                                              IV.

       For the foregoing reasons, the District Court’s Order denying Appellants’ request

for injunctive relief will be affirmed.




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