                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            June 16, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RAMONA SMITH,

      Plaintiff - Appellant,

v.                                                          No. 14-1467
                                                (D.C. No. 1:14-CV-02651-PAB-CBS)
CHEYENNE MOUNTAIN SCHOOL                                     (D. Colo.)
DISTRICT 12,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
                   _________________________________

      Ramona Smith, mother of R.S., a child with Autistic Spectrum Disorder,

appeals the preliminary injunction entered on her claims brought under the

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-82.

Although the district court granted her alternative request that R.S.’s school

placement be at the Cheyenne Mountain Charter Academy (CMCA) under the stay-

put provision of the IDEA, she asserts that the court erred in denying her preferred


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
request that the defendant, Cheyenne Mountain School District 12 (School District)

pay for private-school placement for R.S. pending the conclusion of administrative

proceedings. This court abated the appeal until the district-court proceedings had

concluded. We take jurisdiction under 28 U.S.C. §§ 1291 (appeal from a final order)

and 1292(a)(1) (appeal from the grant of a preliminary injunction). We affirm.

      I.     Background

      The facts forming the basis for the district court’s stay-put order are

undisputed. R.S. resides in the Falcon School District. In 2013, Ms. Smith enrolled

him in kindergarten at CMCA, pursuant to Colorado’s school-choice law. CMCA is

within the School District. Upon his enrollment at CMCA, the staff determined that

the Individual Education Program (IEP) developed by the Falcon School District was

inadequate, so in November 2013, a new IEP was agreed upon. That IEP was revised

in May 2014 (May 2014 IEP), and listed CMCA as R.S.’s school of attendance.

      In July 2014, CMCA informed Ms. Smith and R.S.’s father that it would not

readmit R.S. to CMCA for the 2014-2015 school year because it did not have

adequate staff to carry out R.S.’s IEP. On July 16, 2014, R.S.’s parents filed a

due-process complaint with the Colorado Department of Education, claiming the

School District violated the IDEA. See Miller ex rel. S.M. v. Bd. of Educ. of

Albuquerque Pub. Sch., 565 F.3d 1232, 1236 (10th Cir. 2009) (citing 20 U.S.C.

§§ 1415(b)(6), (g), & (i)(2); describing IDEA procedures to file a complaint and

appeal an administrative decision). Those proceedings were assigned case number

EA 2014-0018. On August 8, 2014, an administrative law judge (ALJ) denied the

                                           2
request to enroll R.S. at CMCA because there had been an insufficient showing that

R.S.’s home school district could not implement his IEP. On September 23, the ALJ

issued a final decision.1

      On September 25, 2014, Ms. Smith filed the underlying federal action seeking

a ruling under the stay-put provision of the IDEA that the School District pay for

private schooling for R.S. In the alternative, she requested an order finding that

CMCA was R.S.’s then-current placement, thereby mandating that CMCA fulfill

R.S.’s IEP while the litigation is pending. The district court issued a preliminary

injunction requiring R.S. to be enrolled at CMCA and to remain enrolled there

throughout any appeal from the ALJ’s ruling or, if none, for 90 days from the date of

the ALJ’s decision. The court denied Ms. Smith’s request for private-school funding.

      Ms. Smith appeals, arguing that the district court should have granted her

request that the School District be required to pay for private schooling for R.S. She

asserts the district court erred in determining that CMCA was R.S.’s then-current

placement.

      II.    Discussion

      The IDEA “is a Spending Clause statute that seeks to ensure that all children

with disabilities have available to them a free appropriate public education [FAPE].”

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005) (citation and internal

quotation marks omitted). The act requires school districts to “create an . . . IEP for


      1
        Ms. Smith has appealed the administrative decision to the district court. See
Smith v. Cheyenne Mountain Sch. Dist., No. 14-cv-03390.
                                           3
each disabled child.” Id. (citing 20 U.S.C. § 1414(d)). “The IEP is a written

statement that sets forth the child’s present performance level, goals and objectives,

specific services that will enable the child to meet those goals, and evaluation criteria

and procedures to determine whether the child has met the goals.” Miller, 565 F.3d

at 1236 (internal quotation marks omitted).

      If a parent believes her child “is not being provided a FAPE in the least

restrictive environment, [she is] given ‘an opportunity to present complaints with

respect to any matter relating to the . . . educational placement of the child, or the

provision of a free appropriate public education to such child.’” Id. (quoting

20 U.S.C. § 1415(b)(6)). While administrative procedures are pending, the stay-put

provision requires a child to remain in his or her “then-current educational

placement.” 20 U.S.C. § 1415(j).2

      This provision serves “in essence, as an automatic preliminary injunction.”

M.R. v. Ridley Sch. Dist., 744 F.3d 112, 118 (3d Cir. 2014) (internal quotation marks

omitted). Accordingly, “[o]nce a court ascertains the student’s current educational

placement, the movants are entitled to an order maintaining that placement without

satisfaction of the usual prerequisites to injunctive relief.” Id. (brackets and internal

quotation marks omitted); see also D.M. v. N.J. Dep’t of Educ., 801 F.3d 205, 211

(3d Cir. 2015) (“The usual prerequisites to injunctive relief are not required.”

2
  Section 1415(j) provides: “during the pendency of any proceedings conducted
pursuant to this section, unless the State or local educational agency and the parents
otherwise agree, the child shall remain in the then-current educational placement of
the child . . . .”

                                            4
(internal quotation marks omitted)). Here, the underlying operative facts are not in

dispute. Thus, we review de novo the district court’s determination of R.S.’s stay-put

placement. See D.M., 801 F.3d at 211 (reviewing de novo “the application of the

‘stay-put’ rule to a given set of facts”); AW ex rel. Wilson v. Fairfax Cty. Sch. Bd.,

372 F.3d 674, 677 (4th Cir. 2004) (“This Court reviews the district court’s

interpretation of the IDEA de novo.”); cf. Sytsema ex rel. Sytsema v. Acad. Sch. Dist.

No. 20, 538 F.3d 1306, 1311 (10th Cir. 2008) (in reviewing a final administrative

decision under the IDEA, federal courts apply a “modified de novo review standard,”

which assumes the ALJ’s factual findings are “prima facie correct” (internal

quotation marks omitted)). We emphasize that our review is limited to the district

court’s October 17, 2014 order granting in part a preliminary injunction, which was

based on the court’s determination of R.S.’s stay-put placement and which requires

R.S.’s educational placement to remain at CMCA until the related administrative

proceedings have concluded.

      The IDEA does not define “educational placement.” Erickson v. Albuquerque

Pub. Sch., 199 F.3d 1116, 1121 (10th Cir. 1999). This circuit has recognized that in

some cases “the dispositive factor is the IEP in place when the stay-put provision is

invoked,” while in others, “a fact-driven approach” is appropriate whereby

educational placement is defined as “something more than the actual school attended

by the child and something less than the child’s ultimate educational goals.” Id.

(internal quotation marks omitted); see also N.D. ex rel. Parents Acting as Guardians

Ad Litem v. Haw. Dep’t of Educ., 600 F.3d 1104, 1116 (9th Cir. 2010) (holding “a

                                            5
change in educational placement relates to whether the student is moved from one

type of program—i.e., regular class—to another type—i.e., home instruction [or] . . .

when there is a significant change in the student’s program even if the student

remains in the same setting”); Drinker ex rel. Drinker v. Colonial Sch. Dist., 78 F.3d

859, 867 (3d Cir. 1996) (stating the “dispositive factor in deciding a child’s ‘current

educational placement’ should be the [IEP] actually functioning when the ‘stay put’

is invoked.” (internal quotation marks omitted)).

      Although R.S. was not attending CMCA at the time of the hearing on the

stay-put motion, the IEP in place at that time was the May 2014 IEP, which listed

CMCA as his school of attendance. In addition, R.S. had attended CMCA the

previous school year for kindergarten. Although Ms. Smith contends that R.S. is

entitled to a proper placement at an unidentified private school, transferring him to a

new school (without any showing that the new school could implement the IEP)

would not comply with the stay-put provision. We conclude that R.S.’s stay-put

placement was CMCA. Consequently, the School District is not required to fund a

private-school placement for R.S.

      Therefore, upon de novo review, we affirm the preliminary injunction

requiring the School District to maintain R.S.’s educational placement at CMCA

during the pendency of administrative proceeding No. EA 2014-0018. We also

affirm the court’s denial of Ms. Smith’s alternative claim for private-school funding.




                                           6
      III.   Conclusion

      The district court’s order granting in part and denying in part Ms. Smith’s

motion for a preliminary injunction is affirmed.




                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




                                          7
