E. E., a minor, by v. Norris School District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
E. E., a minor, by and through his
guardian ad litem LAURA
HUTCHISON -ESCOBEDO ;
C HRISTOPHER ESCOBEDO ; LAURA
ESCOBEDO ,
Plaintiffs-Counter-Defendants-
Appellees,
v.
NORRIS S CHOOL DISTRICT,
Defendant-Counter-Claimant-
Appellant.
No. 20-17270
D.C. No.
1:20-cv-01291-
AWI-JLT
OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted June 17, 2021
San Francisco, California
Filed July 14, 2021
Before: Mary M. Schroeder, Milan D. Smith, Jr., and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke

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2 E.E. V. NORRIS S CHOOL DISTRICT
SUMMARY*
Individuals with Disabilities Education Act
The panel affirmed the district court’s preliminary
injunction order designating student E.E.’s current
educational placement as his “stay put” placement during the
pendency of judicial proceedings in a suit brought under the
Individuals with Disabilities Education Act.
The IDEA’s stay put provision provides that “the child
shall remain in the then-current educational placement”
pending any proceedings. The panel held that this means the
educational setting in which the student is actually enrolled
at the time the parents request a due process hearing, and it
is typically the placement set forth in the student’s most
recently implemented individualized education plan
(“IEP”). The panel held that the district court properly
deemed void and without legal authority an administrative
law judge’s designation of a never-implemented 2020 IEP,
rather than a 2018 IEP, as E.E.’s stay put placement.
Accordingly, the parents’ stay put motion in the district court
functioned as an automatic preliminary injunction, and they
were not required to meet the traditional preliminary
injunction factors.
The panel declined to adopt an exception to the stay put
requirement when a student challenges the then-current
placement as a failure to offer a free appropriate public
education.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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E.E. V. NORRIS S CHOOL DISTRICT 3
COUNSEL
Stephanie Virrey Gutcher (argued) and Melissa D. Allen
(argued), Schools Legal Service, Bakersfield, California, for
Defendant-Counter-Claimant-Appellant.
Goriune Dudukgian (argued), California Justice Project,
Pasadena, California, for Plaintiffs-Counter-Defendants-
Appellees.
OPINION
VANDYKE, Circuit Judge:
This appeal focuses on a preliminary injunction order
entered during the pendency of a suit brought under the
Individuals with Disabilities Education Act, 20 U.S.C.
§§ 1400–91 (IDEA).
Norris School District (Norris) challenges the district
court’s preliminary injunction order designating student
E.E.’s current educational placement as his “stay put”
placement during the pendency of judicial proceedings.
Norris’s primary arguments on appeal are that (1) the district
court applied the incorrect legal standard in entering the
injunction because the federal injunction was preceded by an
administrative stay put determination placing E.E.
elsewhere, and (2) even if the correct legal standard was
applied, this court should adopt a concededly novel
exception to IDEA’s stay put provision. For the reasons
explained below, we disagree and therefore affirm the
district court.

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4 E.E. V. NORRIS S CHOOL DISTRICT
BACKGROUND
E.E. is a young boy who has been diagnosed with autism
spectrum disorder.1 He lives in Bakersfield, California with
his parents (Parents), and resides within the Norris School
District. E.E. attended kindergarten in a general education
classroom at Norris Elementary beginning in August 2018,
and his original Individualized Education Plan (IEP) was
implemented on November 27, 2018 (2018 IEP).
Under IDEA, a child must receive a “‘free appropriate
public education[, or FAPE,] that emphasizes special
education and related services designed to meet [the child’s]
unique needs and prepare them for employment and
independent living.’ IDEA accomplishes this goal by
funding state and local agencies that comply with its goals
and procedures.” Johnson ex rel. Johnson v. Special Educ.
Hearing Off., 287 F.3d 1176, 1178 (9th Cir. 2002) (per
curiam) (quoting 20 U.S.C. § 1400(d)(1)(A)). Each child
covered by IDEA receives an IEP that “addresses: (1) the
child’s goals and objectives, (2) the educational services to
be provided, and (3) an objective method of evaluating the
child’s progress.” Id.
The 2018 IEP placed E.E. at Norris Elementary School
in a general education classroom for most of his school day.
Norris and Parents met multiple times throughout 2019, but
the parties did not modify the 2018 IEP, nor did they adopt
a new IEP.
1 E.E. was seven years old when the district court entered its
preliminary injunction order on October 5, 2020.

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E.E. V. NORRIS S CHOOL DISTRICT 5
A. Administrative Proceedings
On January 14, 2020, Parents filed a due process hearing
request with the California Office of Administrative
Hearings (OAH) seeking to modify certain aspects of E.E.’s
IEP. On January 22, 2020, Norris offered Parents a new IEP
that would move E.E. from Norris Elementary to Bimat
Elementary and place him in a special day class with a
trained behavior aide, but Parents did not agree to Norris’s
proposed IEP (2020 IEP).
Norris thus filed its own due process hearing request on
June 4, 2020, and OAH consolidated the two cases. In July
2020, an Administrative Law Judge (ALJ) heard the matter
over seven days, and on September 2, 2020, she issued a
ruling (OAH Decision). The ALJ found in favor of Parents
in part and Norris in part. Relevant to the parties’ arguments
here, the OAH Decision stated that “Norris denied [E.E.] a
FAPE by materially failing to implement [the] . . . 2018
IEP,” and “[t]he January 22, 2020 IEP, as it may be
amended, shall constitute [E.E.’s] ‘stay put’ under title
20 United States Code section 1415(j) . . . until Parents
consent to a new amendment or annual IEP, or as otherwise
ordered by OAH or other tribunal.”
B. District Court Proceedings
When the new school year started in August 2020, Norris
made plans to move E.E. from Norris Elementary to Bimat
Elementary, consistent with the OAH Decision. On
September 10, 2020, Parents filed a federal lawsuit
challenging parts of the OAH Decision that they disagreed
with. Parents also moved for a temporary restraining order
(TRO) to keep E.E. at Norris Elementary under the 2018 IEP
pending litigation.

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6 E.E. V. NORRIS S CHOOL DISTRICT
The district court granted Parents’ TRO and entered a
preliminary injunction enjoining Norris from implementing
the 2020 IEP. The district court explained that, even though
the ALJ had “acknowledged that the [2018] IEP was the last
one that was implemented for E.E.,” “without any analysis
or explanation” the OAH decision nonetheless stated that the
2020 IEP was E.E.’s new stay put placement. The district
court concluded this ruling was wrong as a matter of law,
and that “the stay put placement will default to the [2018]
IEP, not the [2020] IEP.”
Because Parents sought “to impose the stay put provision
in the first instance,” the district court also determined under
governing precedent that their “motion for stay put functions
as an automatic preliminary injunction, meaning that the
moving party need not show the traditionally required
factors (e.g., irreparable harm) in order to obtain preliminary
relief.” Rather, the party seeking to change that stay put—
here, Norris—bore the burden to show the traditional
preliminary injunction factors favored its attempt to impose
a placement other than the 2018 IEP. The court concluded
that Norris failed to meet that burden.
Lastly, in a final attempt to persuade the district court
that E.E.’s 2018 IEP should not be his stay put placement,
Norris asserted that public policy supports a new exception
to the normal stay put rule. Norris argued that where, as
here, “an IEP . . . has been found by an ALJ to deny a student
a FAPE,” it “should never be given stay put status.” The
district court rejected Norris’s proposed exception,
concluding that it is not supported by any legal authority.
The district court entered a preliminary injunction order
that directed Norris to implement the 2018 IEP “as best as
possible,” subject to Norris and Parents reaching a mutual
agreement on modifications to that IEP or a new placement

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E.E. V. NORRIS S CHOOL DISTRICT 7
for E.E. Absent such agreement, the district court’s
preliminary injunction effectively keeps E.E. in the 2018 IEP
at Norris Elementary during the pendency of legal
proceedings. Norris appeals that preliminary injunction
order.
STANDARD OF REVIEW
Because our review is limited to the district court’s
preliminary injunction order, we do not address the merits of
the parties’ dispute. We review a district court’s grant of a
preliminary injunction for abuse of discretion. Prudential
Real Est. Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867,
874 (9th Cir. 2000). “The district court’s interpretation of
the underlying legal principles, however, is subject to de
novo review and a district court abuses its discretion when it
makes an error of law.” Sw. Voter Registration Educ.
Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (per
curiam).
DISCUSSION
The current appeal focuses on IDEA’s stay put
provision. That provision reads:
[D]uring 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, or, if applying for
initial admission to a public school, shall,
with the consent of the parents, be placed in

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8 E.E. V. NORRIS S CHOOL DISTRICT
the public school program until all such
proceedings have been completed.
20 U.S.C. § 1415(j) (emphasis added).2
We have recognized that “[t]he reading most consistent
with the ordinary meaning of the phrase suggests that the
‘then-current educational placement’ refers to the
educational setting in which the student is actually enrolled
at the time the parents request a due process hearing to
challenge a proposed change in the child’s educational
placement.” N.E. ex rel. C.E. v. Seattle Sch. Dist., 842 F.3d
1093, 1096 (9th Cir. 2016). Educational placement is
defined as “the general educational program of the student.”
N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1116 (9th Cir.
2010). Specifically, this court has “interpreted ‘current
educational placement’ to mean ‘the placement set forth in
the child’s last implemented IEP.’” K.D. ex rel. C.L. v. Dep’t
of Educ., 665 F.3d 1110, 1118 (9th Cir. 2011) (quotation
omitted); accord L.M. v. Capistrano Unified Sch. Dist.,
556 F.3d 900, 911 (9th Cir. 2009); Johnson ex rel. Johnson,
287 F.3d at 1180. While the statute uses the term
“educational placement” instead of IEP, “the purpose of an
2 IDEA’s implementing regulations also reaffirm that a child should
remain in his or her current educational placement during judicial
proceedings:
Except as provided in § 300.533, during the pendency
of any administrative or judicial proceeding regarding
a due process complaint notice requesting a due
process hearing under § 300.507, 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. § 300.518(a) (emphasis added).

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E.E. V. NORRIS S CHOOL DISTRICT 9
IEP is to embody the services and educational placement or
placements that are planned for the child.” N.E. ex rel. C.E.,
842 F.3d at 1096.
I.
The ALJ determined—without parental consent—that
“[t]he January 22, 2020 IEP . . . shall constitute [E.E.’s] ‘stay
put’ under title 20 United States Code section 1415(j).” But
IDEA states that “during the pendency of any proceedings
. . . the child shall remain in the then-current educational
placement.” 20 U.S.C. § 1415(j). This court has recognized
that “‘then-current educational placement’ refers to the
educational setting in which the student is actually enrolled
at the time the parents request a due process hearing,” N.E.
ex rel. C.E., 842 F.3d at 1096, and it “is typically the
placement described in the child’s most recently
implemented IEP.” Johnson ex rel. Johnson, 287 F.3d at
1180; see also Joshua A. v. Rocklin Unified Sch. Dist.,
559 F.3d 1036, 1037 (9th Cir. 2009).
The parties agree that the 2018 IEP was the “operative
IEP until May 7, 2020.” The ALJ also “acknowledged that
the [2018] IEP was the last one that was implemented for
E.E.” The record shows that Parents requested a due process
hearing on January 14, 2020. Therefore, because E.E. was
enrolled in the 2018 IEP at the time Parents requested a due
process hearing and because the 2018 IEP was the last
implemented IEP, it constitutes E.E.’s “then-current
educational placement” under the plain language of the
statute. Absent parental agreement for a modification, E.E.’s
2018 IEP at Norris Elementary remains his current
educational placement and the default stay put placement.
See 34 C.F.R. § 300.518(a) (requiring parental consent to
change the current educational placement during the
pendency of judicial proceedings).

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10 E.E. V. NORRIS S CHOOL DISTRICT
The ALJ lacked the legal authority to effectively
reinterpret the word “current” in the statute to “future.” “An
agency that exceeds the scope of its statutory authority acts
ultra vires and the act is void.” Water Replenishment Dist.
of S. Cal. v. City of Cerritos, 135 Cal. Rptr. 3d 895, 903 (Ct.
App. 2012), as modified on denial of reh’g (Feb. 8, 2012);
cf. City of Arlington v. FCC, 569 U.S. 290, 297–98 (2013)
(recognizing that federal agencies act ultra vires when they
act beyond their statutory authority). Because the ALJ’s stay
put determination “contravene[s] ‘clear and mandatory’
statutory language” by designating E.E.’s potential future
placement in the 2020 IEP as his current placement, the
district court properly deemed the ALJ’s stay put
determination as void. Pac. Mar. Assoc. v. NLRB, 827 F.3d
1203, 1208 (9th Cir. 2016) (citation omitted); see Water
Replenishment Dist. of S. Cal., 135 Cal. Rptr. 3d at 903.
II.
The district court correctly applied the law and did not
abuse its discretion in granting Parents’ motion for a
preliminary injunction. If the ALJ’s stay put ruling had been
valid, then Parents’ motion for a preliminary injunction
would have been the equivalent of a motion to modify or
enjoin a preexisting stay put order. See Johnson ex rel.
Johnson, 287 F.3d at 1180. Under that scenario, Norris
would be correct in asserting that Parents must meet the
traditional preliminary injunction factors. See id. (“We hold
that a request to enjoin a preexisting ‘stay put’ order is
handled appropriately by the district court’s application of
traditional preliminary injunction analysis.”).
But because the ALJ acted ultra vires in stating that
E.E.’s potential future educational placement was his current
educational placement, Parents’ request to the district court
for a preliminary injunction ordering Norris to continue

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E.E. V. NORRIS S CHOOL DISTRICT 11
implementing the 2018 IEP at Norris Elementary was not a
request to enjoin a valid preexisting stay put order. Rather,
their “motion for stay put function[ed] as an ‘automatic’
preliminary injunction,” and they did not have to “show the
traditionally required factors (e.g., irreparable harm) in order
to obtain preliminary relief.” Joshua A., 559 F.3d at 1037.
“Stay put routinely functions” in this way when “a school
district attempts to change a student’s placement, the student
objects to the change by filing an administrative complaint,
and stay put maintains the placement until the dispute ends.”
A.D. v. Haw. Dep’t of Educ., 727 F.3d 911, 914 (9th Cir.
2013).
Because Norris (and not Parents) sought to modify the
current stay put order, Norris bore the burden to show
“[1] that [it] is likely to succeed on the merits, [2] that [it] is
likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in [its]
favor, and [4] that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);
see Johnson ex rel. Johnson, 287 F.3d at 1180. On appeal,
Norris does not argue that it satisfies these factors.
Therefore, the district court did not abuse its discretion or err
by entering the preliminary injunction order designating the
2018 IEP as E.E.’s stay put placement.
III.
Anticipating that we might agree with the district court
that the 2018 IEP is E.E.’s statutorily required stay put
placement, Norris offers an alternative argument: judicially
create an exception to the statute. Specifically, Norris asks
us to adopt a novel exception to IDEA’s stay put statutory
requirement that, “[w]hen a student challenges the then
current placement as a failure to offer FAPE, . . . . [the
student] is not entitled to invoke stay put.”

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12 E.E. V. NORRIS S CHOOL DISTRICT
Norris admits that there are no cases directly supporting
this newly proposed exception. But more problematic for
Norris, the text of the statute cuts against the proposed
exception. The statute does not make the stay put provision
contingent on any challenges to a current placement. It
simply states that “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.” 20 U.S.C. § 1415(j) (emphasis
added). We decline Norris’s invitation to create this new
exception because it would add a contingency on the stay put
provision that Congress did not include in the statute.
In addition to contravening the statutory text, the
proposed exception ignores Parents’ legitimate concern that
Norris could place E.E. in a worse placement than his 2018
IEP in the general classroom. Norris argues that because
Parents sought to change the 2018 IEP, it “would obviously
be at odds with IDEA’s purpose” for them to be allowed to
keep E.E. in an IEP they agreed “is not the appropriate
placement.” But Norris’s argument is based on the false
notion that just because parents want to change a current
placement, they necessarily agree that a placement chosen
by the school or ALJ would be better. The latter does not
follow from the former. Parents might think that their child
should be provided different educational services while also
thinking that the different services the school or ALJ is
offering to provide would be worse than the current
placement. Indeed, that is presumably what Parents think in
this case. And under IDEA’s stay put provision, during the
dispute process it is Parents who get to pick which less-than-
ideal (from their perspective) placement their child will be
in—the current “stay put” placement, or the placement
proposed by the school district or ALJ. IDEA essentially

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E.E. V. NORRIS S CHOOL DISTRICT 13
gives Parents a veto against moving their child until the
courts finally resolve the dispute. Schaffer ex rel. Schaffer
v. Weast, 546 U.S. 49, 53–54 (2005).
Thus, “the stay put provision acts as a powerful
protective measure to prevent disruption of the child’s
education throughout the dispute process.” Joshua A.,
559 F.3d at 1040. Under Norris’s proposed exception,
parents desiring to challenge a current placement as denying
a FAPE could do so only by assuming the risk that a school
district could remove their child from his current placement
and place him in a worse placement (from the parents’
perspective). While one might make various policy
arguments for or against such a possibility, it is not one
Congress left unaddressed. Under IDEA, if the parents and
the school district do not agree on a child’s placement, then
the parents can keep their child in his current placement until
the dispute is finally resolved. See id.; 20 U.S.C. § 1415(j);
34 C.F.R. § 300.518(a).
CONCLUSION
The ALJ acted without legal authority in determining
that E.E.’s potential future placement in the 2020 IEP
constituted his current placement for purposes of E.E.’s stay
put placement. Because the ALJ acted ultra vires, her stay
put determination was void. As a result, Parents’ stay put
motion did not seek to modify an existing stay put order, so
the district court correctly entered an automatic preliminary
injunction pursuant to Joshua A., 559 F.3d at 1037. And
Norris’s proposed exception to the stay put provision is not
supported by either the text of IDEA or any other legal
authority, and we decline to adopt it.
AFFIRMED.

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