K.B. v. Salem Keizer Public Schools et al

Filing 28

Opinion and Order: Plaintiffs' Motions for Temporary Restraining Order and Preliminary Injunction (Case No. 6:24-cv-1517-MC, ECF No. 2 and Care No. 6:24-cv-01575-MK, ECF No. 2 ) are DENIED. Signed on 11/22/2024 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

A.M-G., who sues through her parent, P.G.,
Case No. 6:24-cv-01517-MC
Plaintiffs,

OPINION AND ORDER

v.
SALEM KEIZER PUBLIC SCHOOLS and
WILLAMETTE EDUCATIONAL
SERVICE DISTRICT,

Defendants.
_____________________________
K.B., who sues through her parents, A.B.
and C.B.,
Case No. 6:24-cv-01575-MK
Plaintiffs,
v.
SALEM KEIZER PUBLIC SCHOOLS and
WILLAMETTE EDUCATIONAL
SERVICE DISTRICT,

Defendants.
_____________________________
1 – OPINION AND ORDER

OPINION AND ORDER

MCSHANE, Judge:
Plaintiffs A.M-G. and K.B. are Deaf students who attend school in Defendant Salem
Keizer Public School District (“SKPS”). They bring this action through their parents. Until its
closure, Plaintiff students attended the regional Deaf/Hard of Hearing (“D/HH”) Center Site
Program run by Defendant Willamette Educational Service District (“WESD”) and housed at
Crossler Middle School. Following WESD’s decision to close the program, Plaintiffs filed due
process hearing requests, arguing that the closure is a change in placement and denies Plaintiff
students access to a free appropriate public education. They also invoked the stay put provision
of the Individuals with Disabilities in Education Act (“IDEA”). Plaintiffs ask this Court to order
Defendants to reopen the D/HH program, reinstate Plaintiff students, and maintain the program
during the pendency of litigation. Because Plaintiffs have not shown a change in students’
placement, Plaintiffs’ motions for a temporary restraining order and preliminary injunction (Case
No. 6:24-cv-1517-MC, ECF No. 2 and Care No. 6:24-cv-01575-MK, ECF No. 2) are DENIED.
BACKGROUND
Plaintiff A.M-G. is a student in the SKPS district. Plaintiff P.G. is her parent and legal
guardian. A.M-G. is Deaf and her primary mode of communication is American Sign Language
(“ASL”). A.M-G. Compl. ¶ 1.2, ECF No. 1. 1 A.M-G. also has cochlear implants that she uses
primarily for environmental sounds. A.M-G. Compl. ¶ 3.3. A.M-G. has attended the D/HH
Center Site Program since preschool, most recently completing eighth grade at Crossler Middle
School. A.M-G. Compl. ¶¶ 3.4, 3.15. While in the D/HH program, A.M-G. relied on the Teacher

1

Unless otherwise specified, ECF Nos. in this Opinion & Order refer to the corresponding docket numbers in case
6:24-cv-1517-MC.

2 – OPINION AND ORDER

of the Deaf for supplemental instruction. P.G. Decl. ¶ 4, ECF No. 4. She also relied on the Deaf
peers in her class for information. P.G. Decl. ¶ 5.
Plaintiff K.B. is also a student in the SKPS district. Plaintiffs A.B. and C.B. are her
parents and legal guardians. K.B. Compl. ¶ 1.1, 6:24-cv-01575-MK, ECF No. 1. K.B. is Deaf
and relies on hearing aids, transcription services, and ASL for communication. K.B. Compl. ¶
1.2. K.B. has also attended the D/HH Center Site Program since preschool, completing eighth
grade at Crossler Middle School this past year. K.B. Compl. ¶¶ 3.4, 3.15. While attending the
D/HH program, K.B. relied on her deaf peers and the Teacher of the Deaf to supplement the
communication she received at school. K.B. Compl. ¶ 3.7. K.B. also relied on the ASL
interpreters available for her Deaf peers, especially when her technology was not working. K.B.
Compl. ¶ 3.4.
Defendant Salem Keizer Public Schools and Defendant Willamette Educational Service
District have an inter-district agreement for WESD to provide services for Deaf/Hard of Hearing
(“D/HH”) students. See generally A.M-G. Moritz Decl. Ex. B, ECF No. 3. Until the end of the
2023-2024 school year, WESD ran a Regional D/HH Center Site program. Id. This program was
housed at Salem Heights Elementary School, Crossler Middle School, and Sprague High School.
Id. Deaf students could opt to receive their education at these schools, giving them access to
centralized support services and a cohort of Deaf peers. A.M-G. Compl. ¶¶ 3.2, 3.5.
On March 21, 2024, Plaintiffs received a letter from WESD informing them “that the
Crossler and Sprague Regional Deaf/Hard of Hearing Programs will be closing at the end of the
2023-2024 school year.” A.M-G. Moritz Decl. Ex. C, ECF No. 3. WESD elaborated, “at this
time we will be returning to providing D/HH services in the neighborhood setting.” Id. “Services

3 – OPINION AND ORDER

within the IEP will remain in place, regardless of school attendance.” Id. WESD noted that the
decision was made “after extensive deliberation and analysis of current best educational
practices, regional districts’ needs and interest in the programs, and student educational and
developmental needs.” Id. Although the D/HH program was closing, the letter clarified that
students enrolled at Crossler could continue there through eighth grade, unless they chose to
return to their neighborhood school. Id. The letter also indicated that students wishing to attend
Sprague High School, even if it was not their neighborhood school, could request a transfer. Id.
After receiving this letter, Plaintiffs filed requests for due process hearings with the
Oregon Department of Education, challenging the termination of the regional D/HH program.
A.M-G. Moritz Decl. Ex. E at 1, ECF No. 3; K.B. Moritz Decl. Ex. E at 1, 6:24-cv-01575-MK
ECF No. 3. In July 2024, they also filed Motions for Stay-Put. Id. at 2. On August 9, 2024, an
Administrative Law Judge denied Plaintiffs’ motions for stay put. Id. at 16. The ALJ also
dismissed the due process complaints on ripeness grounds, finding that Plaintiffs “assert[ed] only
allegations related to anticipated future harm in the 2024-20235 school year.” Id. at 15–16. This
appeal followed.
DISCUSSION
The purpose of the Individuals with Disabilities Education Act (“IDEA”) is “to ensure
that all children with disabilities have available to them a free appropriate public education
[“FAPE”].” 20 U.S.C. § 1400(d)(1)(A). The primary mechanism to achieve that is a student’s
individualized education program, or IEP. The IEP spells out the specially designed instruction,
services, and accommodations necessary for the individual child to meet their goals. 20 U.S.C. §
1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320.

4 – OPINION AND ORDER

The IDEA provides for several procedural safeguards, including, as relevant here, “An
opportunity for any party to present a complaint with respect to any matter relating to the
identification, evaluation, or educational placement of the child, or the provision of a free
appropriate public education to such child.” 20 U.S.C. § 1415(b)(6)(A).
The IDEA also provides that “during the pendency of any proceedings conducted
pursuant to this section . . . the child shall remain in the then-current educational placement of
the child.” 20 U.S.C. § 1415(j). This is known as the IDEA’s stay put provision. “Stay put
functions as ‘an “automatic” preliminary injunction,’ and the moving party need not show the
traditionally required preliminary injunction factors to obtain relief.” S.C. by K.G. v. Lincoln
County School District, 16 F.4th 587, 589 (9th Cir. 2021). Stay put was implemented to prevent
schools from unilaterally excluding disabled children from school. Honig v. Doe, 484 U.S. 305,
328 (1988).
Because Plaintiffs have brought a due process claim under 20 U.S.C. § 1415, they may
invoke the stay put provision. At issue is determining what Plaintiffs’ “then-current educational
placement” is and whether there has been a chance in placement.
The IDEA does not define “current educational placement.” N.D. ex rel. parents acting
as guardians ad litem v. Hawaii Dep't of Educ., 600 F.3d 1104, 1114 (9th Cir. 2010). However,
the Ninth Circuit has held “that ‘educational placement’ means the general educational program
of the student. More specifically we conclude that under the IDEA a 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.” Id. at 1116. A child’s “then-current” placement
is “the placement set forth in the child’s last implemented IEP.” N.E. by & through C.E. & P.E.

5 – OPINION AND ORDER

v. Seattle Sch. Dist., 842 F.3d 1093, 1096 (9th Cir. 2016) (quoting K.D. ex rel. C.L. v. Dep't of
Educ., Hawaii, 665 F.3d 1110, 1117–18 (9th Cir. 2011). “The purpose of an IEP is to embody
the services and educational placement or placements that are planned for the child.” Id.
Therefore, the Court looks to the students’ IEPs and associated placement paperwork to
determine if there has been a change in placement.
In June 2022,2 A.M-G.’s “Special Education Placement Determination” was “Access to
special education in, or outside of the general education setting for up to 20% of the school day.”
A.M-G. Moritz Decl. Ex. A at 2, ECF No. 3. Namely, this placement was “Crossler Center Site
for D/HH Students – 1 Class in Special Education Classroom: Study Skills.” Id. In May 2024,
A.M-G.’s “Special Education Placement Determination” was also “Access to special education
in, or outside of the general education setting for up to 20% of the school day.” A.M-G. Polay
Decl. Ex. 1 at 2, ECF No. 11. Namely, this placement was “Foundations class at the high school.
Offering academic supports and study skills.” Id. A.M-G.’s education remains primarily in the
general education classroom, or the same option on the continuum of placement options.
In November 2023, K.B.’s “Special Education Placement Determination” was “Access to
special education in, or outside of the general education setting for up to 20% of the school day.”
K.B. Polay Decl. Ex. 1 at 2, 6:24-cv-01575-MK ECF No. 14-1. Namely, this placement was an
“Advisory class 20 minutes a day, 4 days a week.” Id. In June 2024, K.B.’s “Special education
Placement Determination” was also “Access to special education in, or outside of the general
education setting for up to 20% of the school day.” K.B. Polay Decl. Ex. 4 at 2, 6:24-cv-01575-

2

A.M-G.’s 2023 placement paperwork has not been submitted to the Court. Plaintiffs allege, and Defendants do not
dispute, that the only change between 2022 and 2023 in the Placement Determination form was that it did not
specifically name Crossler. Pls.’ Compl. ¶ 3.11, ECF No. 1.

6 – OPINION AND ORDER

MK ECF No. 14-1. Here, the determination noted that as Sprague High School runs a block
schedule, K.B. would “be removed for one class period . . . for a Study Skills tutorial class.” Id.
K.B.’s education likewise remains primarily in the general education classroom, or the same
option on the continuum of placement options.
A.M-G.’s 2023 and 2024 IEPs3 are substantially similar, with only a few notable
differences. Compare A.M-G. Moritz Decl. Ex. G with A.M-G. Moritz Decl. Ex. H, ECF No. 3.
In the 2023 IEP, A.M-G. was to receive 60 minutes a week of specially designed instruction in
written language and 90 minutes a week of specially designed instruction in reading and
language arts. These are not present in the 2024 IEP. Related services in the 2023 IEP include 60
minutes a month for speech/language services, but only 50 minutes a month in the 2024 IEP. The
required accommodations are all the same from the 2023 to 2024 IEP, with some minor
differences in time allotted.
K.B.’s 2023 IEP was amended in June 2024. See K.B. Moritz Decl. Exs. G and H, 6:24cv-11575-MK ECF No. 3. There were no changes in specially designed instruction or related
services.4 Several accommodations were added to accommodate K.B.’s scoliosis as she
transitioned to high school. A full-time ASL interpreter was also added as an accommodation.
K.B.’s amended IEP provides more accommodations and support.

Defendants assert that A.M-G.’s “most recently implemented IEP” is the May 2024 IEP. Def. SKPS Resp. 4, ECF
No. 10. It is clear to the Court that Plaintiffs are challenging the May 2024 IEP and Placement Determination. For
this analysis, therefore, the Court assumes that the 2023 IEP is A.M-G.’s “last implemented IEP.”
4
Plaintiffs assert that some of K.B.’s specially designed instruction “will be delivered by a special education teacher
with no background in deaf education, rather than a D/HH specialist.” K.B. Pls.’ Mot. TRO 13. In reviewing the
record, the Court sees no such change. K.B.’s 2023 IEP provides for 30 minutes a week each of specially designed
instruction in organization and self-advocacy, provided by the D/HH specialist. The amended IEP makes no changes
in amount, frequency, or provider of K.B.’s specially designed instruction. The 2023 IEP provided for removal from
the regular classroom for 30 minutes a month for self-advocacy specially designed instruction. Likewise, the
amended IEP provides for 30 minutes a month with the teacher of the deaf for self-advocacy and transition skills.
Compare K.B. Moritz Decl. Ex. G with K.B. Moritz Decl. Ex. H.
3

7 – OPINION AND ORDER

Comparing the placement paperwork and the 2023 and 2024 IEPs, the Court finds there
has been no change in current educational placement, so there is no need for a stay put order.
Plaintiffs cite Letter to Fisher, a 1994 Policy letter from the Office of Special education
Programs (OSEP), noting the three components of an educational placement – “the education
program set out in the student’s IEP, the option on the continuum [of alternative placements] in
which the student’s IEP is to be implemented, and the school or facility selected to implement
the student’s IEP.” Pls.’ Mot. TRO 12 (citing Letter to Fisher, 21 IDELR 992 (OSEP 1994)).
This policy letter does lay out four factors to consider when determining if there has been a
change in educational placement: “whether the educational program set out in the child's IEP has
been revised; whether the child will be able to be educated with nondisabled children to the same
extent; whether the child will have the same opportunities to participate in nonacademic and
extracurricular services; and whether the new placement option is the same option on the
continuum of alternative placements.”5 Letter to Fisher, 21 IDELR 992 (OSEP 1994). While the
Ninth Circuit has never adopted these factors, several district courts around the country have
applied these factors in suits challenging an ALJ’s denial of a stay put motion. See, e.g., R.M. v.
Gilbert Unified School District, 2017 WL 3225189 (D. Ariz. Jul. 31, 2017).
Applying the Fisher factors here leads the Court to the same conclusion. As noted above,
Plaintiffs’ IEPs remain substantially the same. Plaintiffs will be educated with nondisabled
students to the same extent. There is no indication or allegation that Plaintiffs will not have the
same opportunity to participate in extracurriculars. And again, as noted above, Plaintiffs will

5

The continuum of placement options, from least restrictive to most restrictive, includes the general education
classroom, the special education classroom, a special school, homebound education, and a hospital or residential
facility. Or. Admin. R. 581-015-2245.

8 – OPINION AND ORDER

continue to spend at least 80% of their days in the general education classroom, the same option
on the continuum of placements. There has been no change in educational placement.
Plaintiffs argue that the closure of the D/HH program is a “significant change in the
student’s program” even though students remain in the same setting. Pls.’ Mot. TRO 12 (quoting
N.D. v. Hawaii Dep’t of Educ., 600 F.3d at 1116). They argue that the Center Site Program
provided centralized services and supports that cannot be replicated at students’ neighborhood
schools. They argue that Deaf education is unique and cannot be analyzed like other disabilities.
And finally, they argue that the cohort of Deaf peers at the Center Site Program was an integral
part of students’ placement.
Plaintiffs assert that, due to the centralized nature of the D/HH Center Site Program,
students previously had daily access to a teacher of the deaf, received direct instruction in ASL,
and had onsite technology support for their assistive devices.
By contrast, Plaintiffs allege that A.M-G. cannot “access her education with only an
interpreter, as an interpreter cannot provide her with an immersive language environment.” P.G.
Decl. ¶ 19. Plaintiffs also allege that there will be insufficient audiologist support at
neighborhood schools. P.G. Decl. ¶ 30. They allege that this will lead to frequent headaches for
A.M-G., or an inability to use her cochlear implants. P.G. Decl. ¶ 30.
Similarly, Plaintiffs allege that K.B. is not receiving the necessary technology support.
K.B. Mot. TRO 5. They also allege that meeting only one time a week with the Teacher of the
Deaf is not sufficient to allow her to access her education. Id. Finally, they allege that K.B.’s
academics and mental health are suffering without Deaf peers in her classes. Id.

9 – OPINION AND ORDER

By definition, Plaintiffs’ IEPs outline the specific services and supports that are necessary
for students to receive a FAPE. To the extent that these benefits of the D/HH Center Site
Program are necessary, they are incorporated in their IEPs and remain in their new or amended
IEPs. If Plaintiffs argue that students are not receiving the services guaranteed in their IEPs, that
is better addressed in their claims for failure to provide a FAPE. Stay put requires only that the
school district provide the services and placement as outlined in the IEP and the placement
paperwork.
Plaintiffs argue that education at neighborhood schools without other Deaf students is
fundamentally more restrictive, as it limits students’ opportunities for direct communication.
Pls.’ Mot. TRO 13. For students who are deaf or hard of hearing, the IEP team must “consider
the child's language and communication needs, opportunities for direct communications with
peers and professional personnel in the child's language and communication mode, academic
level, and full range of needs, including opportunities for direct instruction in the child's
language and communication mode.” 34 C.F.R. § 300.324. However, Plaintiffs have presented
no evidence that students’ communication needs were not considered. Facially, these needs are
addressed in the IEPs.
For A.M-G., the IEP notes that she “uses an FM to help reduce the effects of distance and
noise in the classroom. A.M-G. uses sign language to help make herself understood and may be
necessary because of her language delays. A.M-G. also uses an American Sign Language
interpreter to help her access information in her classes throughout the day.” A.M-G. Moritz
Decl. Ex. H at 6. This addresses A.M-G.’s communication needs and considers her language and
communication mode and academic level.

10 – OPINION AND ORDER

For K.B., the IEP notes that K.B. “requires a teacher to use an FM in class so that she can
hear in an environment with noise more easily. [K.B.] is also accessing transcription services to
capture all the auditory verbal exchanges in the classroom. [K.B.] primarily uses auditory verbal
communication and is easily understood by others. However, if there are technological
breakdowns, use of sign language is helpful.” K.B. Moritz Decl. Ex. H at 5. This addresses
K.B.’s communication needs with peers and professional personnel. The additional
accommodation of a full-time ASL interpreter is also designed to ensure that K.B.’s
communication needs are met.
Plaintiffs argue that without other Deaf students, Plaintiffs are linguistically and
culturally isolated. Pls.’ Mot. TRO 5. Plaintiffs focus on the importance of the cohort of Deaf
students who attended the Deaf/HH Center Site Program. Id. at 3. They note that Deaf students
support each other in class. Id. They stress the mental health benefits of having pers with similar
disabilities and modes of communication. Id. And they assert that a cohort of Deaf peers
amongst hearing students helps Plaintiff students develop language skills. Id. The Court
acknowledges these benefits but notes that a cohort of Deaf peers is not guaranteed in Plaintiffs’
IEPs. And further, even if the Center Site Program were to reopen, there is no guarantee that
other Deaf students in the district would choose to attend. In fact, one of the reasons cited for the
closure of the program was diminished interest among students, many of whom, in high school,
chose to return to their neighborhood schools. A.M-G. Moritz Decl. Ex. C. Neither the Court nor
Defendants can compel other students to attend the D/HH program in order to give Plaintiff
students the cohort of Deaf peers they experienced in previous years.

11 – OPINION AND ORDER

Finally, even if the D/HH program were the students’ current educational placement, stay
put would not require that the program reopen. SKPS contracts with WESD to provide services
for D/HH students. A.M-G. Moritz Decl. Ex. B. The responsibility to provide identified students
with a FAPE remains with SKPS, not with WESD. Id. WESD ran the D/HH program and made
the decision to close the program. A.M-G. Moritz Decl. Ex. C. Neither SKPS nor this Court can
compel WESD to reinstate the program.
“Courts have recognized, however, that because of changing circumstances the status quo
cannot always be exactly replicated for the purposes of stay put.” Van Scoy ex rel. Van Scoy v.
San Luis Coastal Unified Sch. Dist., 353 F. Supp. 2d 1083, 1086 (C.D. Cal. 2005). When a
school closes or a student transfers districts, stay put requires that the substitute placement be as
close as possible under the circumstances. Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d
1115, 1134 (9th Cir. 2003) (looking at school’s responsibility when a student transfers between
districts); accord John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 502 F.3d 708,
715 (7th Cir. 2007) (“A child's interim educational regime must produce as closely as possible
the overall educational experience enjoyed by the child under his previous IEP.”).
Plaintiffs’ current educational program is as close as possible under the circumstances.
As in previous years, Plaintiffs spend at least 80% of their time in the general education
classroom. Their IEPs provide for substantially similar specially designed instruction, services,
and accommodations. The additional accommodation of an ASL interpreter for K.B. mimics her
experience in the D/HH program when ASL interpreters were available for her Deaf peers.
Plaintiffs’ current placement in their neighborhood schools comports with the requirements of
stay put.

12 – OPINION AND ORDER

CONCLUSION
For the reasons set forth above, Plaintiffs’ Motions for Temporary Restraining Order and
Preliminary Injunction (Case No. 6:24-cv-1517-MC, ECF No. 2 and Care No. 6:24-cv-01575MK, ECF No. 2) are DENIED.

IT IS SO ORDERED.
DATED this 22nd day of November, 2024.

/s/ Michael McShane
Michael McShane
United States District Judge

13 – OPINION AND ORDER