                           PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


DANIEL G. WAGNER, JR., a minor           
child acting by and through his
parents Daniel Wagner and Regina
Wagner; DANIEL WAGNER; REGINA
WAGNER, in their individual
capacities,
                 Plaintiffs-Appellees,
                  v.
BOARD OF EDUCATION OF
MONTGOMERY COUNTY; MONTGOMERY
                                         
COUNTY PUBLIC SCHOOLS; JERRY D.
WEAST, in his official capacity as           No. 02-1564
Superintendent of Schools,
Montgomery County Public
Schools,
             Defendants-Appellants,
                  v.
COMMUNITY SERVICES FOR AUTISTIC
ADULTS AND CHILDREN,
            Third Party Defendant,
CHRISTINE CASELLES, Dr.,
                             Movant.
                                         
2      WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY



DANIEL G. WAGNER, JR., a minor           
child acting by and through his
parents Daniel Wagner and Regina
Wagner; DANIEL WAGNER; REGINA
WAGNER, in their individual
capacities,
                 Plaintiffs-Appellees,
                  v.
BOARD OF EDUCATION OF
MONTGOMERY COUNTY; MONTGOMERY
                                         
COUNTY PUBLIC SCHOOLS; JERRY D.
WEAST, in his official capacity as                  No. 02-2187
Superintendent of Schools,
Montgomery County Public
Schools,
             Defendants-Appellants,
                  v.
COMMUNITY SERVICES FOR AUTISTIC
ADULTS AND CHILDREN,
            Third Party Defendant,
CHRISTINE CASELLES, Dr.,
                             Movant.
                                         
           Appeals from the United States District Court
            for the District of Maryland, at Greenbelt.
              Deborah K. Chasanow, District Judge.
                        (CA-02-763-DKC)

                        Argued: June 3, 2003

                       Decided: July 7, 2003

    Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
      WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY        3
Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Niemeyer joined. Judge Widener filed a dis-
senting opinion.


                             COUNSEL

ARGUED: Jeffrey Alan Krew, Columbia, Maryland, for Appellants.
Kerry Lynn Edwards, MAYER, BROWN, ROWE & MAW, Wash-
ington, D.C., for Appellees. ON BRIEF: Lisa L. Levine, MAYER,
BROWN, ROWE & MAW, Washington, D.C., for Appellees.


                              OPINION

LUTTIG, Circuit Judge:

  In this case we are called upon to interpret 20 U.S.C. § 1415(j), the
so-called "stay put" provision of the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. § 1400, et seq.

   Daniel Wagner is an autistic child covered by the IDEA. Prior to
the initiation of this suit, Daniel was receiving at home Lovaas ther-
apy pursuant to an Individualized Educational Program (IEP) pre-
pared by the Board of Education of Montgomery County (the "School
Board") and agreed to by his parents. Trouble arose when the Lovaas
service provider identified in the IEP, Community Services for Autis-
tic Adults and Children (CSAAC), stopped providing services. The
School Board proposed a new IEP and the parents commenced due
process proceedings, challenging the proposed IEP. While those pro-
ceedings were ongoing, the parents also sought an injunction under
section 1415(j) in district court. The district court reasoned that
because Daniel’s current placement was unavailable, due to the
unwillingness of CSAAC to provide services, the School Board was
required to propose an alternative, equivalent placement to satisfy the
"stay put" provision. Because we conclude that the district court erred
in its interpretation of section 1415(j), we vacate the district court’s
orders and remand for further proceedings.
4     WAGNER v. BOARD OF EDUCATION     OF   MONTGOMERY COUNTY
                                  I.

   Daniel Wagner is now seven years old. For the year beginning on
July 2, 2001 and ending on June 30, 2002, Daniel was receiving spe-
cial education services based on an IEP agreed to by all parties at a
meeting held on March 8, 2001 (the "March 8 IEP"). The March 8
IEP provided that Daniel was to receive 20 hours of in home ABA
discrete trial instruction (i.e., Lovaas therapy) and 10 hours of shad-
owing support at a pre-school. In addition, the Wagners had arranged
for Daniel to continue for another year at a private preschool, even
though he was eligible to begin kindergarten at a Montgomery County
public school (MCPS).

   Problems arose by October or November of 2001, when the rela-
tionship between the Wagners and some of the personnel at CSAAC
deteriorated. On November 14, 2001, CSAAC ceased sending its
employees to the Wagner home, effectively cutting off the provision
of services. On November 28, 2001, when it became apparent that
CSAAC would not perform as obligated, the School Board prepared
and proposed a new IEP for Daniel. The new IEP contemplated provi-
sion of services at Maryvale Elementary School (a MCPS school). By
January of 2002, the Wagners rejected the new IEP and initiated due
process proceedings.

   On February 14, 2002, the ALJ conducted a hearing to consider the
proposed change in placement for the remainder of the school year.
At the hearing, counsel for CSAAC stated that CSAAC was willing
to provide services to Daniel in order to satisfy the "stay put" provi-
sion of the IDEA. The very next day, however, the offer was with-
drawn. In a letter dated March 6, 2002, the School Board then offered
the Wagners the "Maryvale Plus" plan, which consisted of the afore-
mentioned new IEP proposal augmented with more one-on-one dis-
crete trial/systematic instruction (to reach a full 20 hours/week) at
Maryvale and 10 hours in regular kindergarten at Maryvale, with an
instructional assistant.

  On March 12, 2002, the Wagners went into federal district court
and sought a preliminary injunction to effect their "stay put" rights
under the IDEA. The Wagners argued that CSAAC would no longer
provide services as it was obligated to do under the March 8 IEP. On
      WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY        5
March 19, 2002, CSAAC offered to resume providing services but
through a subcontract with an outside behavioral specialist or psy-
chologist, most likely through New Jersey’s Lovaas Institute for Early
Intervention (New Jersey LIFE). The parents found this new proposal
unacceptable.

   On April 5, 2002, the district court conducted a hearing and later
issued an opinion in which it concluded that "Daniel’s then-current
educational placement, provided by CSAAC, has been and, as I find,
is no longer available." Wagner v. Board of Education of Montgom-
ery County, Maryland, 198 F. Supp. 2d 671, 675-76 (D. Md. 2002).
The then-current placement was unavailable because Lovaas was the
only program that would satisfy the requirements of the March 8 IEP,
CSAAC was the only state-approved provider of Lovaas services, and
CSAAC was not available to provide services. The district court rea-
soned that "[w]hen the current placement is unavailable in order to
comply with the ‘stay put’ provisions, the [School Board] is obligated
to provide an alternative placement that is a comparable program,
capable of implementing an IEP that does not constitute a change in
placement." Id. at 673. The district court then determined that the
Maryvale Plus proposal was not comparable. Because there were no
other placement proposals before the district court at that time, the
district court then issued a preliminary injunction requiring the School
Board "to propose another at home alternative for a ‘stay put’ place-
ment that does not involve CSAAC within 15 days." Id. at 678. The
School Board appealed that ruling, but also provided the proposal
within the specified time. The School Board proposed an in home
Lovaas based ABA placement to be administered by New Jersey
LIFE, and the district court concluded that that proposal satisfied the
"stay put" provision of the IDEA.

   At the beginning of the next school year, the Wagners sought to
enroll Daniel in kindergarten at a MCPS school for 10 hours a week.
The School Board refused to allow them to do so on the grounds that
the placement plan implemented pursuant to the district court’s
injunction did not provide for in school services at the expense of the
School Board. The parents went back into court and the district court
issued another injunction "clarifying" that the earlier order entered
implementing the new proposal required the School Board to provide
6      WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY
in school services. The School Board appealed from that ruling as
well and both appeals have been consolidated.

                                   II.

   The IDEA, formerly the Education of the Handicapped Act (EHA),
was enacted "to ensure that all children with disabilities have avail-
able to them a free appropriate public education that emphasizes spe-
cial education and related services designed to meet their unique
needs and prepare them for employment and independent living." 20
U.S.C. § 1400(d)(1)(A). To achieve this purpose, the federal govern-
ment provides funds to the states and local agencies to implement
IDEA, on the condition that such states and local agencies comply
with its requirements, both substantive and procedural. The primary
substantive guarantee of IDEA is the provision of a free appropriate
public education, or "FAPE," to children with disabilities. States and
local agencies provide FAPE by designing and implementing IEPs for
disabled children.

   The IDEA also contains several procedural guarantees. If the par-
ents of a disabled child disagree with the IEP proposed by the state
or local authority, they may convene "an impartial due process hear-
ing," to resolve their complaints. Id. § 1415(f)(1). If any of the parties
to the due process hearing are aggrieved by the result of that hearing,
the IDEA authorizes the institution of a civil action in federal court
to challenge the "findings and decision" made in the hearing. Id.
§ 1415(i)(2)(A).

   Perhaps recognizing that these substantial procedural protections
could often take a significant amount of time in which to run their
course, Congress also saw fit to include in the IDEA a provision deal-
ing directly with the child’s placement during the pendency of any
proceedings challenging a proposed IEP. That provision is section
1415(j), the "stay put" provision, which reads in its entirety

     (j) Maintenance of current educational placement

     Except as provided in subsection (k)(7) of this section, dur-
     ing the pendency of any proceedings conducted pursuant to
       WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY         7
     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 such child, or, if
     applying for initial admission to a public school, shall, with
     the consent of the parents, be placed in the public school
     program until all such proceedings have been completed.

Id. § 1415(j) (emphasis added).

   This case turns on the meaning of section 1415(j) and the nature
of its guarantee. In the typical section 1415(j) case, the school board
is attempting to remove the child, whether through expulsion or by
other means, from his or her current placement and the parents are
seeking to stop that action. This case is atypical in that the School
Board is not trying to change Daniel’s placement; the placement has
simply become unavailable through no fault of the School Board. The
district court thought the way to resolve that apparent conundrum was
to search for a comparable alternative placement. See Knight v. Dis-
trict of Columbia, 877 F.2d 1025, 1028 (D.C. Cir. 1989) ("This court
has held that if a student’s ‘then current educational placement’
becomes unavailable, [the school board] must provide him with a
‘similar’ placement pending administrative and judicial approval of
its eventual plans.").

   On that interpretation of the IDEA the district court based its pre-
liminary injunction, which we are here reviewing. While we normally
review the grant of preliminary injunctive relief for abuse of discre-
tion, we review the district court’s interpretation of IDEA de novo.
See Virginia Carolina Tools, Inc. v. Int’l Tool Supply, Inc., 984 F.2d
113, 116 (4th Cir. 1993). If the district court’s injunction was based
on an erroneous interpretation of the statute, it is subject to vacatur
by this court.

  We hold that the district court did err in its interpretation of section
1415(j). Section 1415(j) provides simply and unequivocally that the
child "shall remain" in his or her "then-current education placement"
"during the pendency of any proceedings conducted pursuant to this
section." 20 U.S.C. § 1415(j). The utility of section 1415(j) is thus
easily understood. It guarantees an injunction that prohibits a school
board from removing the child from his or her current placement dur-
8      WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY
ing the pendency of the proceedings. The injunction is automatic; the
party seeking it need not meet the usual requirements for obtaining
preliminary injunctive relief. See Safety-Kleen, Inc. (Pinewood) v.
Wyche, 274 F.3d 846 (4th Cir. 2001). Thus, when presented with an
application for section 1415(j) relief, a district court should simply
determine the child’s then-current educational placement and enter an
order maintaining the child in that placement.

   The district court apparently believed that type of remedy insuffi-
cient in this case. The impetus for the district court’s belief was its
finding of fact that Daniel’s then-current placement was unavailable
because CSAAC could not be counted upon to provide services. See
Wagner, 198 F. Supp. 2d at 675-76. That finding was certainly not
clearly erroneous, and we affirm it on appeal. First, it is undisputed
that Daniel’s then-current placement was the placement established
pursuant to the March 8 IEP, including the provision of services by
CSAAC. See Appellees’ Br. at 20 ("There is no dispute among the
parties . . . that Daniel’s ‘then current’ placement as of the filing of
the due process claim on January 18, 2002 was the Lovaas home-
based intensive early intervention program provided by CSAAC.");
Appellants’ Br. at 17. Second, even though CSAAC had an offer on
the table to resume services at the time the district court rendered its
decision, the district court was certainly entitled to conclude, on the
evidence before it, that CSAAC would not stand by its offer. Among
other things, CSAAC had stopped providing services on its own ini-
tiative, had made an offer to resume providing services only to retract
that offer the next day, and then had made another offer but with new
conditions.

   What was in error was the district court’s conclusion that, upon a
finding of unavailability, it should, pursuant to section 1415(j), seek
out alternative placements by ordering the School Board to propose
such. By its terms, section 1415(j) does not impose any affirmative
obligations on a school board; rather, it is totally prohibitory in
nature. Moreover, section 1415(j) makes no exception for cases in
which the "then-current educational placement" is not functionally
available. In other words, the question of availability is entirely irrele-
vant to the task of identifying the child’s then-current educational
placement, and it is only the current placement, available or unavail-
able, that provides a proper object for a "stay put" injunction. Order-
       WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY         9
ing the child to enter an alternative placement, as the district court did
here, causes the child not to remain in his or her then-current educa-
tional placement, a result that contravenes the statutory mandate and
turns the statute on its head by transforming a tool for preserving the
status quo into an implement for change.

   We find further support for this interpretation in the other provi-
sions of section 1415. The district court’s order effectively required
the School Board to come forward with an alternative interim place-
ment for Daniel. Congress clearly knew how to provide for the place-
ment of a child in an interim alternative educational setting when it
deemed such warranted. See 20 U.S.C. § 1415(k)(2) (granting a hear-
ing officer the authority to place a child in an "appropriate interim
alternative educational setting" if, inter alia, the public agency dem-
onstrates that "the current placement of such child is substantially
likely to result in injury to the child or to others"). Given Congress’
authorization of interim alternative educational settings in other parts
of section 1415, it is telling that a district court is not vested with
authority under section 1415(j) to order placement in such, except in
the limited circumstances delineated in section 1415(k)(7), which are
not here applicable.

   In those cases where the then-current placement is functionally
unavailable, the fact that parties such as the Wagners may not benefit
from a section 1415(j) injunction does not mean that they are without
remedy. First, section 1415(j) allows the parties to effect a change in
placement simply by agreeing upon the new placement. See 20 U.S.C.
§ 1415(j) (providing that the child shall remain in the then-current
educational placement "unless the State or local educational agency
and the parents otherwise agree"). Second, when agreement cannot be
reached, a party may seek a preliminary injunction from the district
court, changing the child’s placement. Under section
1415(i)(2)(B)(iii), the district court is empowered "[i]n any action
brought under this paragraph" to "grant such relief as the court deter-
mines is appropriate." Id. § 1415(i)(2)(B)(iii). As the Supreme Court
stated in Honig v. Doe, 484 U.S. 305 (1988), this means that the court
has the equitable power to order a change in placement upon a suffi-
cient showing. See id. at 327-28 (interpreting the "stay put" provision
of the EHA). The difference between section 1415(j) and section
1415(i)(2)(B)(iii) is that any preliminary injunction entered under sec-
10    WAGNER v. BOARD OF EDUCATION      OF   MONTGOMERY COUNTY
tion 1415(i)(2)(B)(iii) is by no means automatic. The party seeking
such an injunction bears the burden of demonstrating entitlement to
such relief under the standards generally governing requests for pre-
liminary injunctive relief. That more is required to effect a change in
placement pursuant to section 1415(i)(2)(B)(iii) than the maintenance
of placement pursuant to section 1415(j) is consistent with the pre-
sumption created by Congress that a child should remain in the then-
current educational placement. See id. at 328. But the availability of
the section 1415(i)(2)(B)(iii) safety-valve is also consistent with the
understanding that circumstances do exist where maintaining the child
in the then-current educational placement would cause irreparable
harm. Cf. id. at 328 (stating that the "stay put" provision of the EHA
"effectively creates a presumption in favor of the child’s current edu-
cational placement which school officials can overcome only by
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"). District courts should, of course, be extremely cautious
when considering whether to order a change in a child’s placement
under section 1415(i)(2)(B)(iii), given the statute’s strong presump-
tion, expressed in section 1415(j), in favor of the status quo and its
provision for administrative hearing before adjudication in federal
court. See id. at 327.

   With that understanding of section 1415(j), we return to the district
court’s decision. It is clear that the district court did not follow the
proper procedures. When presented with an application for a "stay
put" injunction, the district court should have entered an order main-
taining the child in the then-current education placement, whatever
the status of that placement. Although it is not at all clear that the
Wagners made a showing sufficient to justify the grant of a prelimi-
nary injunction changing Daniel’s placement, if the Wagners wanted
a change, as it appears they did, they should have requested such
relief under section 1415(i)(2)(B)(iii).

   Because the district court’s orders were based upon an incorrect
interpretation of the IDEA, we vacate both of the orders, and remand
for further proceedings consistent with this opinion.*

   *The Board argues that the Wagners’ request for "stay put" relief has
been rendered moot by their unilateral placement of Daniel in the Autis-
tic Learning Center (ALC). It appears, however, that the Wagners were
not successful in their attempt to enroll Daniel in ALC, so their "stay
put" request still presents a live controversy.
      WAGNER v. BOARD OF EDUCATION    OF   MONTGOMERY COUNTY   11
                                      VACATED AND REMANDED

WIDENER, Circuit Judge, dissenting:

  I respectfully dissent.

  I would affirm on the opinion of the district court.
