No. 21-1589

MR. AND MRS. DOE, individually and as parents and next friends of JOHN DOE, a minor,

Plaintiffs, Appellees,

v.

PORTLAND PUBLIC SCHOOLS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Lynch, Thompson, and Gelpí, Circuit Judges.

Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on brief, for appellant. Richard L. O'Meara, with whom Murray, Plumb & Murray were on brief, for appellees. Selene Almazan-Altobelli and Ellen Saideman on brief for Council of Parent Attorneys and Advocates, Inc., amicus curiae.

March 29, 2022 LYNCH, Circuit Judge. Portland Public Schools ("Portland") appeals from the entry of an order from the district court issued under the stay-put provision of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(j), as implemented by 34 C.F.R. § 300.518 and judicial opinions. The court order required Portland to pay for John Doe's tuition for the duration of this litigation at Aucocisco School ("Aucocisco"), where Doe's parents unilaterally placed him in February 2020. Doe v. Portland Pub. Schs., No. 20-cv-00461, 2021 WL 3056372, at *1 (D. Me. July 20, 2021). The district court found that an administrative hearing officer's reimbursement order constituted agreement between the state and the parents that a change of placement to Aucocisco is appropriate. Id. at *4. The court did so despite the fact that the hearing officer whose decision was being reviewed by the court had determined that the individualized education plan ("IEP") issued by Portland in January 2020 would provide a free appropriate public education ("FAPE").

Portland in fact paid for Doe's tuition for the new placement at Aucocisco for the spring and fall semesters of 2020, as the hearing officer required. This was merely an equitable remedy the hearing officer ordered to remedy Portland's denial of a FAPE to Doe from December 2017 to November 2019. The hearing officer separately concluded that Portland provided Doe with an IEP which met the requirements of a FAPE as of January 2020.

- 2 - Portland appeals from the district court ordering it to pay for Doe's placement at the private school during the pendency of these proceedings.

We assert jurisdiction and reverse.1

I.

We recite the facts relevant to this interlocutory appeal. When Doe was in the second grade at East End Community School ("EECS"), his parents referred him for evaluation as a potential special education student in September 2017. The IEP team met in December 2017 and concluded that he was not eligible for special education services.

At the end of Doe's third-grade year, in May 2019, his parents once again referred him for special education evaluation. The IEP team administered evaluations in the fall of 2019 and concluded in November 2019 that he was eligible for special education services. On January 24, 2020, the IEP team proposed an IEP to the Does which would have allowed for Doe's placement at any of Portland's public elementary schools.

Meanwhile, in May 2019, Doe's parents began taking him to tutoring at Aucocisco, a private school serving students with disabilities, which continued through that summer. In fall 2019, Doe's fourth-grade year, his parents unilaterally placed him at

1 We thank amicus