Jacob Winkelman, a minor, by v. Parma City School District

*The Honorable Allen Sharp, United States District Judge for the Northern District of
Indiana, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0066n.06
Filed: January 25, 2006
No. 04-4159
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JACOB WINKELMAN, a minor, by and
through his parents and legal guardians,
JEFF and SANDEE WINKELMAN,
Plaintiffs-Appellants,
v.
PARMA CITY SCHOOL DISTRICT,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: SILER and SUTTON, Circuit Judges; SHARP, District Judge.*
PER CURIAM. This interlocutory appeal arises from the denial of a motion for a
preliminary injunction regarding the stay-put placement for a child under the Individuals with
Disabilities Education Act (IDEA). See generally 20 U.S.C. § 1400, et seq.; 20 U.S.C. § 1415(j)
(stay-put provision). See also Winkelman v. Parma City Sch. Dist., No. 04-4159, at *2 (6th Cir.
Nov. 4, 2004) (order denying motion to dismiss and motion for injunction pending appeal and
construing the pro se motion for a temporary restraining order in this case as a motion for a
preliminary injunction); Wagner v. Bd. of Educ. of Montogmery County, 335 F.3d 297 (4th Cir.
2003) (treating a request for a change in a child’s stay-put placement as a request for a preliminary

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injunction). Because the primary argument raised on appeal was not raised before the district court
in the motion seeking preliminary relief and because the district court did not otherwise abuse its
discretion in denying the motion, we affirm.
I.
Jacob Winkelman is an eight-year-old child with autistic spectrum disorder, a condition that
qualifies him for a “free appropriate public education” through an “individualized educational
program” (IEP) under the IDEA. More than four years ago, in September 2001, Jacob’s parents, Jeff
and Sandee Winkelman, met with officials of the Parma City School District and together they
decided that placing Jacob in preschool at the Achievement Center for Children would meet the
IDEA’s requirements and Jacob’s needs. Jacob attended the Achievement Center during the
2001–02 and 2002–03 school years. At that time the Achievement Center operated a preschool
program designed to serve children ages 3 to 6. IHO Interim Order at 1 (Aug. 27, 2003).
In preparation for the 2003–04 school year, when Jacob would be old enough to transition
from preschool to kindergarten, the Winkelmans met with Parma City School District officials on
June 2, 2003, to discuss the district’s proposed IEP for Jacob. At that meeting, the school district
proposed an IEP that would place Jacob in kindergarten at Pleasant Valley Elementary School.
Dissatisfied with this proposal, which the Winkelmans believed was not “specifically designed to
meet [Jacob’s] special educational needs,” Winkelman Pro Se Br. at 3, the Winkelmans filed a
request for an administrative hearing to challenge the school district’s proposed IEP.

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At the same time, the parents and school district disagreed about which school should be
designated as Jacob’s “stay-put” placement, which is to say the school that Jacob would attend
during the pendency of the administrative hearing and any subsequent appeals. On August 27, 2003,
Impartial Hearing Officer (IHO) Joy M. Freda issued an “Interim Order” treating the Achievement
Center as Jacob’s “current educational placement” and designating it on an interim basis as his stay-
put placement. IHO Interim Order at 4–5 (Aug. 27, 2003); see also 20 U.S.C. 1415(j) (“[D]uring
the pendency of any proceedings conducted pursuant to this section . . . the child shall remain in the
then-current educational placement of the child.”). Although IHO Freda stated that “at the present
time, services offered at the Achievement Center [ ] would continue to offer value to [Jacob],” she
also recognized that “the Achievement Center will not be addressing ‘kindergarten academics,’ and
it is entirely possible that, in the future — perhaps as soon as five or six months — the parents or
school district may conclude [that] such placement is no longer appropriate.” IHO Interim Order
at 5 (Aug. 27, 2003). If during this brief period of time the parents or school district determined that
the Achievement Center was no longer an appropriate placement for Jacob, IHO Freda urged the
parties to “work collaboratively to fashion a mutually-acceptable compromise for [Jacob’s] benefit.”
Id. at 5–6. Ultimately, Jacob’s parents did not place Jacob in the Achievement Center for the
2003–04 school year. They instead enrolled him at the Monarch School of Bellefaire JCB, a private
school specializing in the education of students with autistic spectrum disorders.
On February 19, 2004, IHO Freda ruled on the merits of Jacob’s underlying IDEA claim.
In a 56-page decision she found that the school district’s proposed IEP at Pleasant Valley “offer[ed]

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an appropriate educational program and placement [for Jacob]” and that “the [Winkelmans] [we]re
not entitled to reimbursement for tuition and transportation costs in association with their private
placement of [Jacob] at the Monarch School.” IHO Op. at 32 (Feb. 19, 2004). The Winkelmans
administratively appealed this decision.
On June 2, 2004, a State Level Review Officer affirmed IHO Freda’s decision. Acting pro
se, the Winkelmans then filed a lawsuit in federal district court, challenging these administrative
decisions.
On August 23, 2004, the Winkelmans moved for a preliminary injunction in the district court
designating the Monarch School as Jacob’s stay-put placement. Winkelman Mot. for Inj. at 1. The
school district responded by indicating that Pleasant Valley was the appropriate stay-put placement.
See Parma Mem. in Opp. to Mot. for Inj. at 4, 11. On August 24, 2004, the district court denied the
motion. D. Ct. Order at 4 (Aug. 24, 2004). Noting that the Winkelmans had unilaterally removed
Jacob from the Achievement Center, the court concluded that Jacob’s stay-put placement should be
Pleasant Valley. Id. Following the denial of a motion for reconsideration, the Winkelmans filed this
interlocutory appeal.
On June 2, 2005, while the Winkelmans’ interlocutory appeal was pending in this court, the
district court ruled on the merits of Jacob’s underlying IDEA claim. The court agreed with the IHO
and the State Level Review Officer, determining that the school district’s proposed plan did not
violate the IDEA. See D. Ct. Op. at 20 (June 2, 2005). The Winkelmans appealed that decision to

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this court, again acting pro se. On November 4, 2005, a different panel of judges from this court
issued an order dismissing that appeal unless counsel was retained in the case within 30 days.
Winkelman v. Parma City Sch. Dist., No. 05-3886 (6th Cir. Nov. 4, 2005); see Cavanaugh v.
Cardinal Local Sch. Dist., 409 F.3d 753, 756 (6th Cir. 2005) (stating that non-lawyer parents may
not represent a minor child in an IDEA action in federal court). The Winkelmans then sought, and
received from the United States Supreme Court, a stay of the November 4, 2005 order. That stay
remains in effect “pending the timely filing and disposition by [the Supreme] Court of a petition for
a writ of certiorari,” Winkelman v. Parma City Sch. Dist., No. 05A506 (U.S. Dec. 12, 2005), on the
issue of whether parents may represent their children pro se in federal court actions filed under the
IDEA.
II.
Before addressing whether the district court erred in denying the Winkelmans’ request for
a preliminary injunction regarding Jacob’s stay-put placement, we pause to emphasize that the
Supreme Court’s stay of this court’s November 4, 2005 order does not prohibit us from resolving
this separate appeal. The November 4th order deals with the merits appeal and with whether the
IDEA compels Jacob’s parents to obtain counsel before proceeding with that appeal. In this case,
by comparison, the Winkelmans seek interim relief regarding Jacob’s stay-put placement, and they
have hired counsel to handle this appeal. After the Supreme Court issued its November 4th stay
order, we nonetheless asked the Winkelmans whether they wished to move forward with this appeal.
Through counsel, the Winkelmans not only gave us permission to resolve this independent appeal

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but also indicated that they would prefer us to do so. At oral argument on December 21, 2005, the
Winkelmans again expressed their preference that we move forward with this appeal and the school
district indicated that it did not object.
The standard for obtaining a preliminary injunction is well established. We look to four
factors “in determining the appropriateness of a preliminary injunction: (1) whether the plaintiffs
are likely to succeed on the merits, (2) whether the plaintiffs will suffer irreparable injury in the
absence of an injunction, (3) whether granting the injunction will cause substantial harm to others,
and (4) whether the issuance of the injunction is in the public interest.” Michigan State v. Miller,
103 F.3d 1240, 1249 (6th Cir. 1997). On appeal from the denial of a preliminary injunction, we ask
whether the district court abused its discretion in denying the motion. Id.
The Winkelmans argue that the district court should have ordered the school district to treat
the Achievement Center as Jacob’s stay-put placement and, when that school became unavailable,
should have changed his stay-put placement to the Monarch School. The problem with this
argument is that the Winkelmans never presented it to the district court in seeking a preliminary
injunction. At issue before the district court was whether (in the words of the Winkelmans) “Jacob’s
current placement at the Monarch School should be designated as the stay-put placement” during
the pendency of his appeals because (in the words of the Winkelmans) “if this case w[ere] ripe for
summary judgment today, the Monarch School would be designated as Jacob’s stay-put placement.”
Winkelman Mot. for Inj. at 5–6. In their motion the Winkelmans explained that they “gave notice
on or about August 12, 2003 . . . [that they were] plac[ing] Jacob at the Monarch School” because

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“of the failure [of] Parma to follow the mandates of the IDEA and develop an IEP that would
provide educational benefit to Jacob.” Id. at 3. They then argued that the Monarch School should
be the stay-put placement because “the IHO and [State Level Review Officer] both misinterpreted
and misapplied the IDEA during the administrative proceedings.” Id. at 18 n.2. Nowhere in that
motion, however, did the Winkelmans argue that the Achievement Center was the appropriate stay-
put placement for Jacob and that it became unavailable because Jacob was denied admission—the
position they now take on appeal. See Winkelman Letter Br. Because this argument was not made
before the district court and because the district court was asked only whether the Pleasant Valley
Elementary School of the Parma City School District or the private Monarch School should be
treated as Jacob’s stay-put placement during the resolution of the merits of the IDEA claim, it is
waived. See Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005) (“Our function is
to review the case presented to the district court, rather than a better case fashioned after a district
court’s unfavorable order.”) (internal quotation omitted). In resolving an emergency motion for
preliminary relief, a district court cannot fairly be accused of abusing its discretion in rejecting an
argument that was never made. Because the Winkelmans make no other tenable arguments for
reversing the district court’s decision and because (as they acknowledged at oral argument) they
cannot tenably claim at this point that they have a likelihood of success on the merits (in view of the
three merits decisions against them), we conclude that the district court’s preliminary-injunction
ruling did not amount to an abuse of discretion. Of course, the Winkelmans’ other appeal awaits
resolution by another panel of this court. If the Winkelmans prevail in that appeal and establish that
the proposed IEP at Pleasant Valley is inadequate under the IDEA, then that ruling may well provide

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the family considerable relief. See, e.g., Knable v. Bexley City Sch. Dist., 238 F.3d 755, 763 (6th
Cir. 2001) (noting that parents may be entitled to reimbursement for the costs of a child’s education
incurred during the review of an IDEA claim if the reviewing court finds that the school district’s
proposed public placement violated the IDEA and that the private school placement was appropriate
under the IDEA).
III.
For these reasons, we affirm the district court’s denial of the Winkelmans’ motion for a
preliminary injunction.

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