Savita Sivakumar | Stay-Put or Pay for Better: Students with Disabilities and the Stay-Put Provision

ISSUE

The Individuals with Disabilities Education Act (IDEA) requires school districts to develop Individualized Education Programs (IEP) for children with disabilities specifying how each student will receive a Free Appropriate Public Education (FAPE). A variety of disputes may arise over what constitutes a FAPE for a student with disabilities. If a parent or guardian feels their child is not receiving adequate resources, they may approach the district for a collaborative process towards resolution. However, either party, the school district or the parent, may also file a complaint to request a hearing, which gives the parties 30 days to resolve the dispute. An additional 45 days may be allotted if a resolution is still not reached.

As part of that process, the “stay-put” provision protects students while parents and school districts resolve their dispute over how to best educate the student. The provision provides: “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.” The purpose of the provision is to prevent schools from excluding students with disabilities and to provide stability for those students during their hearing. Town of Burlington v. Dep’t of Education (1985). In Burlington, the Supreme Court affirmed reimbursement for private school placement during trial, but it is unclear whether reimbursement is available throughout appellate procedure.

If a school district prevails in the dispute, parents still upset with the outcome are generally forced to enroll their students in private schools. They also hold the right to seek state or federal court review post the initial decision. However, courts are split whether the “stay-put” provision applies through the pendency of the appellate case and whether parents and guardians are entitled to tuition reimbursement at private schools if the court ultimately holds in their favor on appeal.

SPLIT

The courts of appeals are divided as to whether the stay-put provision applies through the judicial appeals process or whether it drops after the trial court reviews the state administrative decision.

The D.C. Circuit originally held that the stay-put provision only applies through the trial court decision and the word “proceedings” does not include judicial appeals.

D.C. Circuit: In Andersen v. District of Columbia (D.C. Cir. 1989), four children with learning disabilities sought reimbursement from the District of Columbia Public Schools for expenses of tuition at private specialized schools. The court held that assertion inconsistent with statutory language because the statute in Section 17 refers only to “due process hearings, state administrative review where available, and civil actions for review brought in district court.” The court also referenced legislative purpose, stating:

“Once a district court has rendered its decision approving a change in placement, that change is no longer the consequence of a unilateral decision by school authorities; the issuance of an automatic injunction perpetuating the prior placement would not serve the section’s purpose.”

However, recently, the Third and Ninth Circuits created a split by holding that the pendency applies through appeals. Under this decision, the student would be entitled to stay-put provision protection and reimbursement through lengthy appellate trials.

Ninth: In Joshua A. v. Rocklin (9th Cir. 2009) the court held that the Andersen interpretation was overly narrow and that allowing the district to terminate the child’s placement during the appeals process runs counter to the purpose of the stay-put provision:

“[R]efusing to enforce the stay put provision during the appeals process would force parents to choose between leaving their children in an education setting which potentially fails to meet minimum legal standards, and placing the child in private school at their own cost. Congress sought to eliminate this dilemma through its enactment of § 1415(j).”

Third: In M.R. v. Ridley (3rd Cir. 2014), the court found it was impossible to protect a child’s educational status quo without enforcing the stay-put provision through appellate procedure and was an unavoidable consequence of the balance Congress struck to ensure stability for a vulnerable group of children.

LOOKING FORWARD

Currently, the Supreme Court’s Burlington decision does not definitively say whether parents can be reimbursed for appellate procedure. The dicta in the opinion suggests that reimbursement for appellate procedure should only be approved if “the State or local education agency and the parents… agree.” But the recent Third and Ninth Circuit interpretations contradict this dictum and indicate a shift away from the Burlington dictum. Furthermore, other Supreme Court cases referencing the IDEA have emphasized the importance of the protecting disabled students’ placement and entitlement to FAPE. Limiting the stay-put provision to trial courts forces disabled children with limited means to move back to placements that could have been inappropriate to avoid costs that they may be entitled to under further consideration.