                  FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JOSHUA A., a minor, by and            
through Jorge A., his guardian ad           No. 08-15845
litem,                                         D.C. No.
               Plaintiff-Appellant,
                                          2:07-CV-01057-
                 v.                           LEW-KJM
ROCKLIN   UNIFIED SCHOOL DISTRICT,            OPINION
                Defendant-Appellee.
                                      
       Appeal from the United States District Court
          for the Eastern District of California
       Ronald S.W. Lew, District Judge, Presiding

                Argued and Submitted
      November 17, 2008—San Francisco, California

                    Filed March 19, 2009

       Before: John T. Noonan, Andrew J. Kleinfeld
           and Sandra S. Ikuta, Circuit Judges.

                 Opinion by Judge Noonan




                            3555
             JOSHUA A. v. ROCKLIN UNIFIED SCHOOL         3557




                         COUNSEL

Bob N. Varma, El Dorado Hills, California, for the plaintiff-
appellant.

Marcella L. Gutierrez, Sacramento, California, for the
defendant-appellee.


                         OPINION

NOONAN, Circuit Judge:

   This appeal is focused on the financial aspect of a federal
program designed to accommodate the special educational
needs of a child with disabilities. It pits the parents of the
child, understandably anxious to secure the child’s effective
education, against a school district conscious of its educa-
tional mission and of its limited funds. The solution to this
conflict is found in what Congress has prescribed.
3558         JOSHUA A. v. ROCKLIN UNIFIED SCHOOL
   Joshua A., a child affected by autism, contended that Rock-
lin Unified School District (“the District”) failed to provide
him for the year 2006-2007 with a Free and Appropriate Pub-
lic Education in accordance with 26 U.S.C. § 1412(a)(1)(A).
In a separate memorandum disposition, filed together with
this opinion, we have affirmed the judgment of the district
court’s denial of Joshua’s appeal. Here, we address only Josh-
ua’s motion for stay put seeking reimbursement for educa-
tional costs incurred during the pendency of this appeal.

                      PROCEEDINGS

   Less than one month after filing this appeal, Joshua filed a
motion for stay put under § 1415(j) of the IDEA, requesting
that the District continue to co-fund his in-home intervention
program through the appeals process. The statute requires the
state to maintain the child’s “current educational placement”
during the course of “any proceedings conducted pursuant to
this section.” 20 U.S.C. § 1415(j); L.M. ex rel. Sam M. v.
Capistrano Unified Sch. Dist., 538 F.3d 1261, 1270 (9th Cir.
2008). The phrase “current educational placement” includes
“the placement described in the child’s most recently imple-
mented IEP [or Individualized Education Plan]” Id. For
Joshua, the most recently implemented IEP required the Dis-
trict to co-fund forty hours a week of in-home educational ser-
vices administered by Therapeutic Pathways (“Pathways”), a
nonpublic agency.

  The motions panel referred the stay put motion to this
Court to decide along with the merits of the case.

                         ANALYSIS

  Section 1415(j), the stay put provision, reads:

    during the pendency of any proceedings conducted
    pursuant to this section, unless the State or local edu-
    cational agency and the parents otherwise agree, the
              JOSHUA A. v. ROCKLIN UNIFIED SCHOOL            3559
     child shall remain in the then-current educational
     placement of the child, or, if applying for initial
     admission to a public school, shall, with the consent
     of the parents, be placed in the public school pro-
     gram until all such proceedings have been com-
     pleted. 20 U.S.C. § 1415.

   [1] A motion for stay put functions as an “automatic” pre-
liminary injunction, meaning that the moving party need not
show the traditionally required factors (e.g., irreparable harm)
in order to obtain preliminary relief. Drinker ex rel. Drinker
v. Colonial Sch. Dist., 79 F.3d 859, 864 (3d Cir. 1996). The
District’s primary challenge to the motion, then, is that the
provision is inapplicable to “proceedings” pending before cir-
cuit courts of appeals. For the reasons discussed below, we
disagree.

1.   The plain text of the statute:

   [2] Section 1415(j) requires the school district to keep chil-
dren in their current educational placement “during the pen-
dency of any proceedings conducted pursuant to this section.”
Four kinds of proceedings are mentioned in § 1415: (1) medi-
ation; (2) due process hearings; (3) state administrative
review; and (4) “a civil action” begun by a complaint under
the IDEA, “which action may be brought in any State court
of competent jurisdiction or in a district court of the United
States, without regard to the amount in controversy.” 20
U.S.C. § 1415(e), (f), (g), (i). The District argues that the
plain language of the stay put provision excludes Joshua’s
appeal to the circuit court.

   [3] This is an unnecessarily narrow reading of § 1415(j).
Civil actions under the IDEA may be brought in federal dis-
trict courts. 20 U.S.C. § 1415(i)(2)(A). Circuit courts have
jurisdiction to hear appeals from final judgments of district
courts pursuant to 28 U.S.C. § 1291. By giving Joshua the
right to appeal the ALJ’s decision to the district court, § 1415
3560         JOSHUA A. v. ROCKLIN UNIFIED SCHOOL
also made it possible for Joshua to appeal the dispute to this
circuit court. We presume that Congress was aware of this
fact when it enacted § 1415(j). We therefore reject the Dis-
trict’s position that the plain language of the stay put provi-
sion excludes appeals from final judgments of the district
courts from civil actions. The Department of Education, in
implementing § 1415(j), reaches the same result, requiring
maintenance of a child’s educational placement “during the
pendency of any . . . judicial proceeding.” See 34 C.F.R.
§ 300.518(a) (2006) (emphasis added).

   It is argued that the statute does not unambiguously compel
this result. “If a statute’s language can reasonably be con-
strued in more than one way, a court may not substitute its
own construction of the statute for a reasonable interpretation
made by the agency that Congress has entrusted to implement
the legislation.” Ariz. Health Care Cost Containment Sys. v.
McClellan, 508 F.3d 1243, 1253 (9th Cir. 2007) (citations
omitted). Because the Department of Education’s reasonable
interpretation of the statute conforms with ours, see 34 C.F.R.
§ 300.518(a), we need not resolve whether the statute is
ambiguous at this time.

2.   Case Law:

   [4] No Ninth Circuit cases address the issue. The only pub-
lished circuit court decision addressing the issue is a nineteen-
year-old opinion from the D.C. Circuit. See Andersen ex rel.
Andersen v. District of Columbia, 877 F.2d 1018, 1023-24
(D.C. Cir. 1989). The Andersen court denied the plaintiff’s
motion for stay put during the pendency of the appeal, con-
cluding that “[o]nce a district court has rendered its decision
approving a change in placement, that change is no longer the
consequence of a unilateral decision by school authorities; the
issuance of an automatic injunction perpetuating the prior
placement [through the appeals process] would not serve the
section’s purpose.” Id. at 1024.
               JOSHUA A. v. ROCKLIN UNIFIED SCHOOL                   3561
   Andersen relies on a tangential policy argument in Honig
v. Doe, 484 U.S. 305 (1988). However, the holding in Honig
is inapposite to the present case. In Honig, the Supreme Court
was asked by a school district to read a “dangerousness” or
exigency exception into the stay put provision, allowing
schools to suspend or exclude disabled students that pose a
danger to their peers. 484 U.S. at 323. The Court rejected the
school district’s contention, holding that in order to change a
disabled student’s placement (beyond a ten-day suspension)
schools must seek the help of the courts through the proce-
dures of the IDEA. Id. at 326. In order to bolster its argument
that the stay put provision would not prevent the courts from
suspending a child under exigent circumstances, the Court
stated that the provision was intended to prevent “the unilat-
eral exclusion of disabled children by schools, not courts.” Id.
at 327 (emphasis in original). Ultimately, the Court held that
a court can change a child’s placement notwithstanding the
stay put provision only upon a showing “that maintaining the
child in his or her current placement is substantially likely to
result in injury either to himself or herself, or to others.” Id.
at 328.

   Andersen was too quick to take language from Honig out-
side of the limited context of the exigency argument before
the Supreme Court. The present case — as with most cases
where the stay put provision applies — does not involve exi-
gency, nor does it involve a child who shows a likelihood of
causing harm to himself or to others. The school district in the
present case was not asked to meet the stringent and specific
legal threshold which Honig required schools to meet in order
to overcome the application of the stay put provision. Under
these circumstances, Honig is inapplicable, and Andersen’s
reliance on the policy language from that case is unpersuasive.1
  1
    It is also worth noting that Honig was at least partially superceded by
statute. See 20 U.S.C. § 1415(k)(1)(G); H.R. Rep. No. 105-95, at 108-09
(1997). In its 1997 amendment and reauthorization of the IDEA, Congress
added what the house report refers to as “two exceptions to the pendency
3562            JOSHUA A. v. ROCKLIN UNIFIED SCHOOL
   [5] No published circuit court opinions have followed the
holding in Andersen. Several recent district and state courts
have explicitly rejected its rationale, however. See N. Kitsap
Sch. Dist. v. K.W. ex rel. C.W., 123 P.3d 469, 482-83 (Wash.
Ct. App. 2005) (“the holding in Andersen does not follow the
general policy behind IDEA, which is to keep from disturbing
the child throughout the statutory process designed to resolve
disputes between the school district and the child’s parents or
guardians over where the child can receive the appropriate
educational opportunities”); Ringwood Bd. of Educ. v. K.H.J.
ex rel. K.F.J., 469 F. Supp. 2d 267, 270-71 (D.N.J. 2006)
(rejecting Andersen and concluding that Third Circuit cases
require the stay put provision to apply during the appeals pro-
cess). Additionally, Andersen’s holding is inconsistent with
the Department of Education’s recent regulations implement-
ing § 1415(j), which require maintenance of the child’s place-
ments “during the pendency of any . . . judicial proceeding.”
34 C.F.R. § 300.518(a).

    For these reasons, the District’s reliance on Andersen does
little to bolster its position that the stay put provision is inap-
plicable here.

3.   Structural and policy considerations:

  The District argues that like other preliminary injunctions,
a stay put order should expire upon the issuance of a final

provision.” H.R. Rep. No. 105-95, at 108. The first exception is now codi-
fied in § 1415(k)(1)(G) of the Act, entitled “Special circumstances,” which
permits school personnel to change the placement of students carrying or
possessing weapons; knowingly possessing, using or selling controlled
substances; or causing serious bodily injury to others, for up to forty-five
school days “without regard to whether the behavior is determined to be
a manifestation of the child’s disabilities.” § 1415(k)(1)(G). Under the
new amendment, school districts are no longer required, as they were
under Honig, to first appeal such changes to the courts. Cf. 484 U.S. at
323-28.
              JOSHUA A. v. ROCKLIN UNIFIED SCHOOL            3563
judgment. By this account, the district court’s judgment in
favor of the District ended the District’s obligations by termi-
nating the application (and the applicability) of § 1415(j).

   [6] But the “automatic” nature of a stay put order cuts
against the District’s position. The fact that the stay put provi-
sion requires no specific showing on the part of the moving
party, and no balancing of equities by the court, evidences
Congress’s sense that there is a heightened risk of irreparable
harm inherent in the premature removal of a disabled child to
a potentially inappropriate educational setting. In light of this
risk, the stay put provision acts as a powerful protective mea-
sure to prevent disruption of the child’s education throughout
the dispute process. It is unlikely that Congress intended this
protective measure to end suddenly and arbitrarily before the
dispute is fully resolved.

   [7] Ultimately, refusing to enforce the stay put provision
during the appeals process would force parents to choose
between leaving their children in an education setting which
potentially fails to meet minimum legal standards, and placing
the child in private school at their own cost. Congress sought
to eliminate this dilemma through its enactment of § 1415(j).
See Susquenita Sch. Dist. v. Raelee S. ex rel. Heidi S., 96 F.3d
78, 87 (3d Cir. 1996) (“Without interim financial support
[provided through a motion for stay put], a parent’s ‘choice’
to have his child remain in what the state has determined to
be an appropriate . . . placement amounts to no choice at
all.”). Allowing the District to terminate the child’s placement
during the appeals process, while the District continues to
receive federal education funding, runs counter to the purpose
of § 1415(j).

   The case is REMANDED to the district court to determine
what the school district owes Joshua for the cost of his educa-
tion during the pendency of his appeal.
