                                                                        [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 OCT 16, 2006
                                 No. 05-15769                  THOMAS K. KAHN
                           ________________________                CLERK


                      D. C. Docket No. 03-00065-CV-4-RH

CP,


                                                                Plaintiff-Appellant,

                                      versus

LEON COUNTY SCHOOL BOARD FLORIDA,
WILLIAM MONTFORD, Individually and
in his capacity as Superintendent,


                                                             Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________

                                (October 16, 2006)

Before MARCUS, WILSON and COX, Circuit Judges.

WILSON, Circuit Judge:

      Appellant, CP, an emotionally disabled student, appeals the district court’s
final judgment in favor of the Leon County School Board (“the School Board”),

denying CP’s claims under the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. 1400 et seq. Pursuant to Fla. Stat. § 1003.57(1)(e), CP

initiated two separate proceedings before the Florida Division of Administrative

Hearings (“DOAH I” & “DOAH II” ), alleging that the School Board had not

complied with its obligations under the IDEA. At both hearings, the

Administrative Law Judges (“ALJs”) determined that the School Board had not

violated the IDEA. The district court reviewed the judgments of the ALJs and

found for the School Board on all counts. After oral argument and a thorough

review of the briefs and record, we affirm the judgment of the district court.

                                   I. Background

      The purpose of the IDEA generally is “to ensure that all children with

disabilities have available to them a free appropriate public education that

emphasizes special education and related services designed to meet their unique

needs and prepare them for further education, employment, and independent living

. . . .” 20 U.S.C. § 1400(d)(1)(A). State and local educational agencies are eligible

for federal assistance if they have in effect policies and procedures to ensure that

they provide a free appropriate public education (“FAPE”) to disabled students. Id.

§ 1412. The Supreme Court has held that in order to satisfy its duty to provide



                                           2
FAPE, a state or local educational agency must provide “personalized instruction

with sufficient support services to permit the child to benefit educationally from

that instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 203, 102 S. Ct. 3034,

3049, 73 L. Ed. 2d 690 (1982). This standard, that the local school system must

provide the child “some educational benefit,” Id. at 198, has become known as the

Rowley “basic floor of opportunity” standard. JSK v. Sch. Bd., 941 F.2d 1563,

1572-73 (11th Cir. 1991) (“The . . . educational outcome need not maximize the

child's education. If the educational benefits are adequate based on surrounding

and supporting facts, [IDEA] requirements have been satisfied.”) (internal citations

omitted).

       Specifically, the IDEA mandates that schools and parents together develop

an individualized education program (“IEP”), a written statement for each disabled

child that includes, inter alia, “a statement of the child's present levels of academic

achievement and functional performance . . . ; a statement of measurable annual

goals . . . ; [and] a statement of the special education and related services . . . to be

provided to the child . . . .” 20 U.S.C. § 1414(d)(1)(A)(i)-(iii). As we have noted,

“the IEP is more than a mere exercise in public relations. It forms the basis for the

[disabled] child’s entitlement to an individualized and appropriate education.” Doe

v. Ala. State Dep’t of Educ., 915 F.2d 651, 654 (11th Cir. 1990).



                                             3
       The IDEA provides important procedural safeguards to parents and children,

including the right to present complaints regarding “the identification, evaluation,

or educational placement of the child, or the provision of [FAPE] . . . .” 20 U.S.C.

§ 1415(b)(6); Doe, 915 F.3d at 655. Further, parents and children have a right to

present complaints regarding placement of the child or the provision of FAPE and

to initiate an impartial due process. 20 U.S.C. § 1415(f)(1); Doe, 915 F.2d at 655.

Finally, parents have a right to appeal the decision of the administive hearing

officer to a United States district court, where the district court judge will review

the complaint de novo and may hear additional evidence if necessary. 20 U.S.C. §

1415(i)(2)(A); Doe, 915 F.2d at 655.1

                                           II. Facts

       This case arises from proceedings initiated by CP, a disabled child under the

IDEA. The relevant facts are as follows. CP was enrolled in Leon County public

schools from 1996 through 2004. During that time, the School Board categorized

CP, who suffered from Post Traumatic Stress Syndrome and other disabilities, as

emotionally handicapped, making him eligible for special education and related



       1
        The Supreme Court has developed a test for determining whether a school board has
provided FAPE in cases arising under the IDEA: “(1) whether the state actor has complied with
the procedures set forth in the IDEA, and (2) whether the IEP developed pursuant to the IDEA is
reasonably calculated to enable the child to receive educational benefit.” Sch. Bd. v. K.C., 285
F.3d 977, 982 (2002) citing Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051.

                                               4
services.2 From 1996 through 2001, CP received special education and related

services from the School Board both in mainstream educational facilities and at

PACE, a day treatment program for students with emotional and behavioral

problems. While CP made progress in school, he continued to struggle

academically and had frequent behavioral problems, including a number of

juvenile offenses.

       In March 2001, following a period of commitment at West Florida

Wilderness Institute, a privately run, moderate risk facility for first time and repeat

nonviolent juvenile offenders, CP enrolled at Lawton Chiles High School, a

mainstream facility. In May 2002, prior to the end of the 2001-2002 school year,

Chiles administrators convened an IEP meeting to develop an IEP for the 2002-

2003 school year. The IEP team 3 recommended that CP continue at Chiles High

School, receiving both regular and special education services. CP’s mother

objected to the IEP’s failure to include extended year school services (summer

classes), as noted by a statement she wrote next to her signature on the IEP form.


       2
         Regardless of the precise diagnosis, the parties do not dispute that CP was a “child with
a disability” entitled to rights under the IDEA. 20 U.S.C. § 1401(3)(A). In the lexicon of the
applicable Florida Statute, CP was entitled to an “exceptional student”education. Fla. Stat. §
1003.57. Although CP is now over twenty-one years old, beyond the coverage of the IDEA,
during all times relevant to this litigation, CP was within the age range covered by the Act.
       3
        An IEP team consists of, at a minimum, the parents of the child, one regular education
teacher of the child, one special education teacher, and a representative of the local educational
agency. 20 U.S.C. § 1414(d)(1)(B).

                                                 5
The IEP team determined that extended year school services was not necessary.

The IEP team provided CP’s mother with a copy of the “Informed Notice of

Refusal to Take a Specific Action,” as required by the IDEA. 20 U.S.C. §

1415(b)(3) (requiring the state educational agency to provide “written notice to the

parents of the child . . . whenever the local educational agency . . . refuses to

initiate or change” the educational placement). At that time, CP’s mother did not

file any formal complaints or initiate a due process hearing regarding the May

2002 IEP (“Chiles IEP” or “stay-put IEP”). Thus, the Chiles IEP was implemented

for the 2002-03 school year.

      CP began the 2002-03 school year with difficulty. In September, CP’s

teachers reported that he had been sleeping in class, that he was frequently tardy to

school and that he was failing three of his seven classes. On September 26, 2002,

CP’s mother requested a personal aide to accompany CP to his classes. Although a

parent-teacher conference was held to discuss the matter, the School Board denied

the request. CP’s behavior and attendance worsened as the school year progressed.

In October, CP’s parents requested to have him committed under the Baker Act,

Fla. Stat. § 394.451, et seq. (setting forth the Florida procedure for involuntary

commitment of persons who pose a danger to themselves or to others), and

obtained an evaluation of CP by an independent counselor suggesting inpatient



                                            6
trauma treatment was needed. Chiles’ Principal Merry Ortega immediately

requested an IEP meeting. However, before an IEP meeting could be convened,

CP was arrested on October 24, 2002 and sent to the Juvenile Detention Center.

       On November 12, 2002, prior to CP’s release from the detention center, the

IEP team conducted an IEP meeting attended by CP and CP’s mother. The IEP

team developed a plan proposing to place CP at PACE upon his release from

detention. CP’s mother objected to this placement, asking instead for inpatient

trauma treatment or for a personal aide at Chiles and for CP to be taught in a

separate classroom from other students. The IEP team rejected these requests,

standing by its proposal. Plaintiff’s mother resisted placement at PACE, and wrote

next to her signature on the IEP form that she disagreed and “exercise[d] stay

put.”4 On November 14, 2002, CP’s mother filed a request for an administrative

hearing raising several issues (DOAH I), all alleging that the School Board had not

provided FAPE to CP. The request again specifically invoked the IDEA’s stay-put

provision.

       CP returned to Chiles on November 20, 2002 upon his release from

detention, and resumed his education under the Chiles IEP on November 21, 2002.

In January 2003, the ALJ in DOAH I determined that the PACE IEP offered FAPE


       4
         The “stay-put” provision of the IDEA prevents local educational agencies from
unilaterally changing a child’s placement. 20 U.S.C. § 1415(j); see infra § IV.

                                               7
and that the School Board had complied with IDEA. CP appealed the ALJ’s

decision to the district court, and voluntarily withdrew from Chiles for the

remainder of the 2002-03 school year. CP received educational services in Volusia

County during that time.

      In July 2003, CP sought to develop a new IEP with the School Board for the

2003-04 school year. The School Board reminded CP in a letter dated July 10,

2003 that because CP had invoked stay-put and because DOAH I was still on

appeal in the district court, the Chiles IEP would have to remain in effect unless or

until CP and his parents and the School Board could agree on an alternative

placement. The letter indicated that the School Board was willing to meet with CP

to determine whether they could agree on an alternative educational placement. At

an IEP meeting on August 14, 2003, the School Board offered alternative

proposals, including remaining at Chiles or placement at PACE as had been

proposed in the November 2002 IEP. CP’s mother and school administrators had

ongoing correspondence at the beginning of the school year regarding alternative

placements and alterations to the Chiles IEP. However, the only change to the IEP

upon which the parties could agree was to include language therapy. Otherwise,

the Chiles IEP remained in place as the stay-put IEP.

      When the 2003-04 school year began, CP enrolled in a full slate of classes at



                                          8
Chiles. However, during the first few weeks of the school year, he was frequently

absent or tardy from class. In September 2003, CP was again arrested. By this

time, he had attained the age of majority and was placed in the Leon County Jail.

CP requested that he be withdrawn from Chiles and that the School Board provide

educational services to him at the Leon County Jail. Although the School Board

had never had another student request educational services at the jail, it provided

services in accordance with the Chiles IEP while CP was incarcerated.

      In November 2003, while the the judgment of the first ALJ was on appeal in

the district court, CP initiated another administrative hearing (DOAH II) to

determine whether the School Board had properly implemented the Chiles IEP

from August 18, 2003 through November 13, 2003. The ALJ in DOAH II also

found for the School Board on every claim. CP amended the complaint in his

appeal of DOAH I in the district court to include challenges to both DOAH I and

DOAH II.

      The district court affirmed the ALJs’ decisions in DOAH I and DOAH II.

We now hear the appeal from the district court’s affirmance.

                             III. Standard of Review

      Whether an IEP provided FAPE is a mixed question of law and fact subject

to de novo review. Sch. Bd. v. K.C., 285 F.3d at 982-83 (citing JSK v. Hendry



                                          9
County Sch. Bd., 941 F.2d at 1571). Specific findings of fact are reviewed for clear

error. Id. at 983 (citing Walker County Sch. Dist. v. Bennett, 203 F.3d 1293, 1295

n. 7 (11th Cir. 2000)).5 To the extent this issue involves the interpretation of a

federal statute, it is a question of law which we review de novo. Walker County

Sch. Dist., 203 F.3d at 1295 (citing United States v. Gilbert, 136 F.3d 1451 (11th

Cir.1998); Rodriguez v. J.D. Lamer, 60 F.3d 745, 747 (11th Cir.1995); Morris v.

Haren, 52 F.3d 947, 949 (11th Cir.1995)).

                                        IV. Discussion

       While the district court made rulings on a number of issues, CP challenged

only three on appeal,6 and we find that only one issue merits our consideration:

whether the district court correctly ruled that the School Board properly complied

with the “stay-put” provision of the IDEA, 20 U.S.C. § 1415(j), by maintaining

CP’s then-current placement, the Chiles IEP, through the 2003-04 school year.

Section 1415(j) provides that “during the pendency of any proceedings conducted


       5
        In contrast, the district court judge conducts an entirely de novo review of the ALJ’s
findings and has discretion to determine the level of deference it will give to the ALJ’s findings.
Sch. Bd. V. K.C., 285 F.3d at 983 (citing Rowley, 458 U.S. at 205, 102 S. Ct. 3034; Doe 915 F.2d
at 657 n. 3).
       6
         In addition to the issue addressed in this opinion, CP raised the following issues: (1)
whether the district court erred in finding that the School Board’s implementation of the Chiles
IEP while CP was in jail did not violate the IDEA; and (2) whether the district court erred in
finding that the PACE IEP offered FAPE to CP. CP’s appellate brief identified a total of four
issues, as opposed to the three identified herein. However, issues three and four in the
Appellant’s Brief are essentially covered by the PACE IEP issue.

                                                10
pursuant to [the IDEA], unless the State or local agency and the parents otherwise

agree, the child shall remain in the then-current educational placement of such

child . . . until all such proceedings have been completed.”7 The Supreme Court

has held that Section 1415(j) is “unequivocal,” stating “plainly” that a school board

shall not change the current educational placement unless or until it can agree on

an alternative placement with the parents, or until the issue is resolved through the

administrative hearing process. Honig v. Doe, 484 U.S. 305, 323, 108 S. Ct. 592,

604, 98 L. Ed. 2d 686 (1998) (quoting 20 U.S.C. § 1415(e)(3) (now codified at 20

U.S.C. § 1415(j)). The drafters of section 1415(j) acknowledged that proceedings

under the IDEA may prove “long and tedious.”8 Id. at 324, 108 S. Ct. at 605.

       With the stay-put provision, Congress has provided procedural protection to

disabled children and their parents by preventing unilateral action by school



       7
         Section 1415(j) was formerly codified at 20 U.S.C. § 1415(e)(3). This provision, also
referred to as the “pendency” provision, may also be found in the Department of Education
Regulations:

       [D]uring the pendency of any administrative or judical proceeding regarding a
       complaint under [the Act], unless the State or local agency and the parents of the
       child agree otherwise, the child involved in the complaint must remain in his or
       her current educational placement.

34 C.F.R. § 300.514(a) (effective until Oct. 13, 2006).
       8
        Because of the potential for lengthy proceedings, “the Act's drafters did not intend [§
1415(j)] to operate inflexibly.” Honig, 484 U.S. at 324, 108 S. Ct. at 605. However, Congress
only “allowed for interim placements where parents and school officials are able to agree on
one.” Id. at 324-25, 108 S. Ct. at 605.

                                                11
administrators in contravention of a child’s or parent’s objection, until the

completion of review proceedings. Id.; Tenn. Dep’t of Mental Health and Mental

Retardation v. Paul B., 88 F.3d 1466, 1472 (6th Cir. 1996). The provision

amounts to, “in effect, an automatic preliminary injunction,” Zvi D. v. Ambach, 694

F.2d 904, 906 (2d Cir. 1982), maintaining the status quo and ensuring that schools

cannot exclude a disabled student or change his placement without complying with

due process requirements. Paul B., 88 F.3d at 1472. In Honig, the Supreme Court

stated that even where a disabled child posed a danger to other students, the plain

language of section 1415(j) prevails, preventing schools from removing a child

from school without the permission of the parents or until resolution by a hearing

officer. Honig, 484 U.S. at 323, 108 S. Ct. at 604.

       In this case, CP argues that the School Board was obligated to implement an

alternative placement, abandoning the stay-put IEP, in spite of the fact that the

stay-put provision had been invoked.9 The thrust of CP’s argument is that the


       9
         Appellant cites a number of cases on this issue in his appellate brief, but does not clearly
articulate how they support his argument. For example he relies on Burlington v. Dep’t of Educ.,
471 U.S. 359 (1985), for the proposition that school districts may not avoid their obligation to
provide FAPE by simply invoking stay-put. However, Burlington does not support that
proposition. In Burlington, the parents had unilaterally withdrawn their disabled child from
public school, arguing that the school district’s placement had denied FAPE. The parents
prevailed in the administrative hearing and the placement approved by the hearing officer’s
decision became the “stay put” IEP. The Court construed the hearing officer’s decision as an
agreement between the state agency and the parents to alter the educational placement under the
stay-put provision, thus the parents were entitled to be reimbursed by the school board for the
cost of the private education. Burlington does not compel the School Board to agree with the

                                                 12
School Board violated the IDEA’s requirement that local educational agencies

update a child’s IEP annually in order to provide FAPE, even though the stay-put

provision had been invoked and even though the School Board and parents could

not agree on an alternative placement. We hold that School Board complied with

all of its obligations under the IDEA.

       The IDEA requires the local educational agency to have an IEP in effect for

each child at the beginning of each school year, 20 U.S.C. § 1414(d)(2)(A), and

requires the IEP team to “review[] the child’s IEP periodically, but not less

frequently than annually, to determine whether the annual goals for the child are

being achieved; [and] revise[s] the IEP as appropriate . . . .” Id. § 1414(d)(4)(A).

CP argues that the School Board violated the IDEA because it failed to update

CP’s IEP for the 2003-04 school year.

       CP’s argument ignores the fact that the Chiles IEP was in place at the

beginning of the 2003-04 school year, in accordance with section (d)(2)(A), and

that the School Board made attempts on at least two occasions to reach an

agreement on an alternative placement for CP. Each time, CP rejected the School

Board’s alternatives, insisting on the one he proposed. Section (d)(4)(A) does not

require the IEP team to alter an IEP annually; rather, it requires that it review the


parents’ proposed placement apart from the judgment of a hearing officer. Thus, CP’s reliance
on Burlington is misplaced.

                                              13
IEP annually and revise it “as appropriate.” Here, the IEP team held an IEP

meeting on August 14, 2003 and engaged in an ongoing dialogue with CP’s mother

regarding possible alternatives. This constitutes a review under section (d)(4)(A).

The School Board could not revise the IEP because CP had invoked stay-put and

the parties could not agree on an alternative placement.

      Congress has provided that where the parties cannot agree on an alternative

placement, they may seek a resolution through the administrative hearing process.

20 U.S.C. § 1415(f)(1). Further, as noted by the Supreme Court in Honig,

Congress’s clear instruction to the parties is to maintain the status quo unless and

until one of two conditions is met: (1) the proceedings have run their course, or (2)

the parties can otherwise agree. Honig, 484 U.S. at 323, 108 S. Ct. at 604. In this

case, at the beginning of the 2003-04 school year, neither condition had been met.

CP’s claims against the School Board were still pending, and the parties could not

reach an agreement on an alternative placement. Thus, the School Board properly

kept the stay-put IEP in place.

      CP also argues that even where the parties cannot agree on an alternative

placement while the stay-put IEP is in place, the School Board must revise the IEP

if it fails to provide FAPE. While we agree that local educational agencies have an

ongoing obligation to provide FAPE under 20 U.S.C. § 1412(a)(1)(A), CP’s



                                          14
argument rests on the assumption that the Chiles IEP failed to offer FAPE for the

2003-04 school year – an assumption that we need not entertain. The question

presented in this case is not whether the Chiles IEP offered FAPE during the 2003-

04 school year,10 but whether the School Board complied with the IDEA by

implementing the Chiles IEP while CP’s claims were pending. Because CP’s

claims in DOAH I were on appeal in the district court through the 2003-04 school

year and because the parties could not agree on an alternative placement, the stay-

put provision remained in effect and the School Board could not unilaterally alter

CP’s IEP. See Honig, 484 U.S. at 323-26, 108 S. Ct. at 604-606.

       Therefore, the School Board complied with the IDEA by maintaining the

status quo, that is, by implementing the Chiles IEP in the 2003-04 school year,

during the pendency of the proceedings initiated by CP. Accordingly, we affirm

the judgment of the district court.

       AFFIRMED.




       10
          DOAH II stated that it did not have jurisdiction to address whether the Chiles IEP
offered FAPE. It did assert jurisdiction over whether the School Board properly implemented
the stay-put IEP during the 2003-04 school year. The ALJ in DOAH II stated in her Conclusions
of Law that the School Board agreed that the Chiles IEP no longer offered FAPE when it
proposed the PACE IEP. However, there was no finding of fact to that effect in DOAH II or the
district court. DOAH II further stated in its Conclusions of Law that CP received “some
educational benefit” during the 2003-04 school year both at Chiles and at the Leon County Jail.
The district court held that the School District’s implementation of the Chiles IEP at the Leon
County Jail did provide FAPE.

                                              15
