N.E. et al v. Seattle School District

Filing 24

ORDER TO SHOW CAUSE directing Plaintiffs to show cause why this case should not be dismissed as moot. Show Cause Response due within 10 days of this order. Signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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N.E., et al.,

CASE NO. C15-1659JLR
Plaintiffs,

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ORDER TO SHOW CAUSE

v.
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SEATTLE SCHOOL DISTRICT,
Defendant.

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On October 16, 2015, Plaintiffs N.E. and his parents, C.E. and P.E. (collectively,

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“the Parents”), filed this action as an interlocutory appeal from an administrative law

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judge’s (“ALJ”) “stay put” decision on N.E.’s 2015-16 individualized education program

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(“IEP”). (Compl. (Dkt. # 1).)

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N.E. is a male child who attended third grade at New Heights Elementary School

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in the Bellevue School District (“the BSD”) for most of the 2014-15 school year. (See

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Hruska Decl. (Dkt. # 3) ¶ 7, Ex. 7 (“ALJ Decision”) at 2.) During most of that year and

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in the prior years, N.E.’s IEP placed him in general education classes with paraeducator

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support (“general classes”) for the majority of the school day. (See id.; C.E. Decl. (Dkt.

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# 4) ¶ 1.) The most recent IEP reflecting that arrangement dates from December 2014

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(“the December 2014 IEP”). (See ALJ Decision at 2; C.E. Decl. ¶ 2, Ex. 1 (“12/14

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IEP”).)

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N.E. had substantial difficulties during the 2014-15 school year. (See ALJ

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Decision at 2; C.E. Decl. ¶ 3.) Certain BSD officials and teachers, the Parents, and their

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respective counsel attended an IEP meeting on May 26, 2015. (See ALJ Decision at 2;

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Hruska Decl. ¶ 5, Ex. 4 at 10-13 (“Landwehr Decl.”) ¶ 5.) At the meeting, the BSD

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proposed a new IEP that would place N.E. in specialized classes for students with

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behavioral and emotional disorders (“separate classes”). (See Landwehr Decl. ¶ 5; C.E.

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Decl. ¶ 3.) The Parents objected to this proposal. (See ALJ Decision at 2; C.E. Decl. ¶ 3;

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Landwehr Decl. ¶ 5.)

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At the meeting, BSD officials and the Parents also discussed where to place N.E.

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for the remainder of the school year. (See ALJ Decision at 2.) When the meeting

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occurred, N.E. was subject to an emergency expulsion, and the Parents were

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uncomfortable with N.E. returning to Newport Heights Elementary. (See id.; Landwehr

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Decl. ¶ 6.) The BSD and the Parents agreed that N.E. would finish the final weeks of the

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2014-15 school year at a different school in the district. At that school, N.E. would spend

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the majority of the day in a one-on-two setting that included N.E., a teacher, and a

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paraeducator, but no other students (“individual classes”). (See ALJ Decision at 2; C.E.

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Decl. ¶ 4; Landwehr Decl. ¶ 6.)

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One day later, on May 27, 2015, the BSD produced a final IEP for N.E. (“the May

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2015 IEP”). (See ALJ Decision at 2; C.E. Decl. ¶ 5, Ex. 2 (“5/15 IEP”).) The May 2015

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IEP had two stages: (1) N.E. would finish the end of the 2014-15 school year in the

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agreed-upon individual classes; and (2) N.E. would be placed in separate classes at the

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start of the 2015-16 school year. (See ALJ Decision at 2-3; C.E. Decl. ¶ 5; 5/15 IEP at

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15-16.) The Parents did not file an administrative due process challenge to the May 2015

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IEP and instead allowed N.E. to continue attending the individual classes until the school

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year ended on June 22, 2015. (See ALJ Decision at 2-3; C.E. Decl. ¶ 7.)

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The Parents and N.E. moved to Seattle in the summer of 2015 and contacted

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Defendant Seattle School District (“the SSD”) to enroll N.E. for the 2015-16 school year.

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(See ALJ Decision at 3; C.E. Decl. ¶ 8; Landwehr Decl. ¶ 7.) The Parents requested that

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the SSD place N.E. in classes similar to the individual classes N.E. had attended during

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the final part of the prior school year. (See ALJ Decision at 3; Landwehr Decl. ¶ 7.) The

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SSD reviewed N.E.’s records and decided to place him in separate classes similar to those

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contemplated in the second part of the BSD’s May 2015 IEP. (See ALJ Decision at 3;

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C.E. Decl. ¶ 8; Landwehr Decl. ¶ 7.)

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The Parents objected and filed an administrative due process challenge to the

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SSD’s decision. (See ALJ Decision at 3; Hruska Decl. ¶ 2, Ex. 1 (“DP Hearing Req.”).)

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At the same time, the Parents filed a motion for “stay put,” arguing that N.E.’s “stay put”

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placement is the placement described in the December 2014 IEP—general classes. (See

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ALJ Decision at 3; DP Hearing Req. at 3; Hruska Decl. ¶ 3, Ex. 2 (“Stay Put Mot.”)); 20

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U.S.C. § 1415(j). The SSD contended that the separate classes described in the May

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2015 IEP represented the appropriate stay put placement for N.E. (See ALJ Decision at

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3; Hruska Decl. ¶¶ 4-6, Exs. 3-5.) Following testimony and oral argument on the stay put

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motion, the ALJ sided with the SSD and concluded that separate classes were N.E.’s

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“stay put” placement. (See ALJ Decision at 1, 4.)

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Plaintiffs’ suit before this court seeks reversal of the ALJ’s decision and a

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declaration that the SSD is required to place N.E. in a general education setting consistent

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with his December 2014 IEP pending the outcome of Plaintiffs’ due process challenge to

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the SSD’s intended placement. (Compl. at 5.) Plaintiffs sought a temporary restraining

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order (“TRO”) and preliminary injunction ordering the SSD to place N.E. in general

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classes pending the outcome of Plaintiffs’ due process challenge. (See Compl.; TRO

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Mot. (Dkt. # 2); 10/27/15 Order (Dkt. # 11) at 5.) The court denied Plaintiffs’ motion

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because the court found no support for Plaintiffs’ theory that the court could “ignore any

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unrealized stages of a multi-stage IEP or treat such stages as distinct IEPs.” (10/27/15

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Order at 9.)

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Plaintiffs appealed the court’s decision to the Ninth Circuit Court of Appeals. (See

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Not. of Appeal (Dkt. # 15).) On November 11, 2016, the Ninth Circuit affirmed the

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court’s denial of the TRO and preliminary injunction. (App. Op. (Dkt. # 18).) On

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February 3, 2017, the Ninth Circuit issued its formal mandate. (Mandate (Dkt. # 23).)

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The parties have not taken any action in this matter since the Ninth Circuit issued its

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mandate. (See generally Dkt.)

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Because the events at the center of Plaintiffs’ lawsuit occurred during the 2014-15

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and 2015-16 school years and Plaintiffs request relief that relates to N.E.’s placement for

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the 2015-16 school year, the court ORDERS Plaintiffs to SHOW CAUSE why this case

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should not be dismissed as moot. Plaintiffs must file their response no later than ten (10)

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days after the entry of this order and limit their response to no more than five (5) pages.

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The SSD may, but is not required to, file a response subject to the same deadline and

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page limit.

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Dated this 9th day of March, 2017.

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A

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JAMES L. ROBART
United States District Judge

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