R. et al v. Oakland Unified School District et al

Filing 34

ORDER re 26 First MOTION for Preliminary Injunction to Enforce Stay Put Provision filed by R. R.; VACATING January 16, 2014 hearing. Joint Status Report due by 1/27/2014. Signed by Judge Kandis A. Westmore on 1/9/2014. (kawlc1, COURT STAFF) (Filed on 1/9/2014)

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United States District Court
Northern District of California

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United States District Court
Northern District of California

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R.R., by and through his parent ROSLYN
RUCKER,
Plaintiffs,
v.
OAKLAND UNIFIED SCHOOL DISTRICT;
and GARY YEE, Individually and in his
capacity as Superintendent of the Oakland
Unified School District,

Case No.: CV 13-05069-KAW
ORDER REGARDING PLAINTIFFS’
MOTION FOR PRELIMINARY
INJUNCTION TO ENFORCE “STAY-PUT”;
VACATING JANUARY 16, 2014 HEARING
(Dkt. No. 26)

Defendants.
On December 12, 2013, Plaintiffs filed a motion for preliminary injunction to enforce the

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“stay-put” provision to allow R.R. to stay in his current educational placement and have his last

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agreed upon Individualized Education Plan (IEP) fully implemented. (Dkt. No. 26.) Oakland

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Unified School District opposes this motion on the grounds that the relief sought is not the current

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educational placement pursuant to the Individuals with Disabilities Education Act (IDEA). (Defs.’

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Opp’n, Dkt. No. 27 at 1.)

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While such administrative or subsequent judicial proceedings are pending, the “stay

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put” provision of the IDEA entitles the child to remain in his or her “current educational

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placement.” 20 U.S.C. § 1415(j); L.M. v. Capistrano Unified School Dist., 556 F.3d 900, 911

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(9th Cir. 2009). Section 1415(j) provides that “[d]uring the pendency of any proceedings

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conducted pursuant to this section, unless the State or local educational agency and the

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parents or guardian otherwise agree, the child shall remain in the then current educational

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placement of such child ….” The IDEA does not expressly define “current educational

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placement.” The courts, however, have generally construed the phrase to mean “the

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placement described in the child’s most recently implemented IEP.” Johnson v. Special Educ.

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Hearing Office, 287 F.3d 1176, 1180 (9th Cir. 2002).

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In the instant matter, the parties modified the May 2011 IEP in September 2011, which

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changed R.R.’s current placement. (Pls.’ Mot. at 9; Defs.’ Opp’n at 3.) This appears to be the

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last agreed upon IEP that was fully implemented. Thereafter, as a result of an Alameda

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County Family Court Order, Ms. Rucker unilaterally increased R.R. to school three days per

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week, from the previously agreed-upon two days per week. (Defs.’ Mot. at 4; Decl. of David

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Mishook, Dkt. No. 27-1 ¶ 5.)

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The Court does not have a copy of R.R.’s May 2011 IEP or the September 2011

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modification, and so cannot confirm that the parties’ representations of the last implemented

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IEP are accurate. In light of the intervening Alameda County Family Court Order and the fact
that the Administrative Law Judge’s decision provided that five days per week was the

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United States District Court
Northern District of California

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appropriate placement, the parties are asked to meet and confer to determine how many days

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per week R.R. should be enrolled—at this juncture, whether it should be two or three days.

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All other services agreed upon as of September 2011 should be implemented, including any

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home instruction. If the District is not providing these services, the Court would be inclined

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to order them to do so, as it was the last implemented IEP. (See Pls.’ Reply at 6.)

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The parties, however, are reminded that the stay-put placement may be changed if the
parent and district agree to a change in placement or service. See 34 C.F.R. § 300.518(a).

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Accordingly, the January 16, 2014 hearing is vacated and the parties are ordered to meet

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and confer regarding R.R.’s placement and submit a joint status update on or before January 27,

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2014. If the parties are unable to resolve this dispute without court intervention, their status

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update shall outline the placement and services still in dispute and attach copies of the May 2011

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IEP and the September 2011 modification. Any agreed upon stay-put placement is temporary and

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will not otherwise affect the outcome of the pending litigation. Upon receipt of the status update,

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the court will then determine whether the matter may be resolved without oral argument or further

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briefing pursuant to Civil Local Rule 7-1(b).

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IT IS SO ORDERED.
Dated: January 9, 2014

______________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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