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Monday, August 4, 2014

Supreme Court Asked To Clarify Schools’ IDEA Obligations (with Comments)

From DisabilityScoop

By Shaun Heasley
July 30, 2014

The nation’s school district leaders are asking the U.S. Supreme Court to weigh in on who should pay for a child’s private school tuition while special education disputes are litigated.

Currently, school districts are responsible under the Individuals with Disabilities Education Act’s “stay-put” provision for paying for a student to remain in their existing educational placement while parents and schools sort out disputes related to the child’s special education services.

Now, however, the National Association of State Directors of Special Education, the National School Boards Association and the Pennsylvania School Boards Association say that schools should be relieved of the responsibility to foot the bill for private school placements once a court finds in a district’s favor.

At issue is a case known as M.R. v. Ridley School District. Earlier this year, the U.S. Court of Appeals for the Third Circuit in Philadelphia determined that the Ridley School District in suburban Philadelphia was responsible for private school tuition for a child known in court papers as E.R. while the child’s family continued to appeal their dispute even though a lower court found in favor of the district.

In a friend-of-the-court brief filed this week, the education groups are asking the Supreme Court to review the case, arguing that the obligation of districts to keep paying tuition “creates a perverse incentive for parents to prolong appeals simply to reap the benefit of private school tuition funded by public dollars.”

“IDEA requires school districts to provide a child with disabilities a free appropriate public education, not to fund the parents’ preferred private placement,” said Francisco M. Negrón, Jr. of the National School Boards Association in a statement. “Once a district court determines that a school district has provided FAPE, its obligation to pay for the stay-put placement should end.”

Comments (3 Responses)

vmgillen says: “Stay Put” means the child stays where they were placed administratively, not unilaterally (by school district or parents). For example, several years ago a child in a segregated public spec ed school was recommended for private residential placement by the principal. “Stay Put” prevailed until the hearing, which did not support the residential placement. Sadly, “appropriate” is not clear-cut, and is too often influenced by political power-plays, funding, and other motivators – NOT the best interests of the child.

The only time I’ve seen serious issues with “stay put” is in the course of significant transitions – Early Intervention to PreSchool to El-Hi.

Denise Marshall says: One of the most powerful protections that Congress provided in the IDEA is the right to an impartial due process hearing to protect each child’s right to a free appropriate public education (FAPE). It is well established that a FAPE prepares a child for meaningful employment, higher education and lifelong learning, as well as full participation in his or her community.

Due process hearings are exceedingly rare, and approximately 87% of due process cases are resolved prior to a hearing. There are times, however, when a due process hearing is a parent’s only recourse.

In such a situation, the law requires maintenance of “the status quo” for the student while the dispute is pending. The courts have recognized that in creating the “stay put” provision, Congress meant to prevent districts of the power to unilaterally change a child’s placement. This aligns with the IDEA’s emphasis on parent participation in the educational decisions for their children. See 20 U.S.C. §1412(a)(5)(A); 34 C.F.R. §§300.550(b)(1) & (2)

The unfortunate reality is that in special education matters, despite all of the prohibitions against predetermination and unilateral decisions, school districts often make a unilateral change to a student’s program, including changing educational placement. In securing “stay put,” advocates and attorneys help parents prevent these types of unilateral actions.

Parents should not have to leave their child in an inappropriate education setting, which potentially fails to meet the minimum legal standards, during prolonged disputes. Parents are ill equipped to battle the monolith of school district’s resources. The struggle of parents, faced with parenting a child with a disability on a day by day basis, cannot be overstated nor minimized. Contrary to Amici assertions parents are not seeking to “game” the system, they merely seek what is equitable and just: a free appropriate public education.

In the jurisdictions where the incidence of due process requests and due process hearings are abnormally high, one must ask why due process requests are more necessary, and why certain jurisdictions are not successful in resolving due process requests prior to full adjudication? What is happening systemically to resolve issues with the provision of FAPE?

It is not surprising that very often such jurisdictions correspondingly have the lowest percentage of successful resolution sessions, and there may be other factors as well. For example, Washington, D.C., one of the jurisdictions named, has the nation’s twelfth lowest rate of high school graduations. An analysis of the due process decisions from D.C. suggests that “these cases were sorely needed because many of these children received little or no extra help until high school, even though they were performing at an extraordinarily low level throughout their educational experience. These cases reflect the national data about special education’s doing a poor job of meeting the needs of minority children.”

Clearly, due process protections, including “stay put” must remain available to protect the legal and civil rights of children with disabilities.

Parents have every reason to advocate vigorously on behalf of their children – and while resolution is pending, a child’s life is at stake. If the financial costs of are to be considered, the financial costs associated with failing to educate a child with a disability must also be considered. Failure to provide a free appropriate public education to students with disabilities will result in an increasing cadre of Americans with disabilities unable to participate in its economy, unable to add their creativity and perspective to the American enterprise, unable to pay taxes and dependent on government to meet their needs.

Denise Marshall is executive director of COPAA - The Council of Parent Attorneys and Advocates, Inc.


This article cites one instance, ONE, in which the stay put provision of the law may be burdening the school district needlessly. We don’t know the details of the case. We do not know if the judicial decisions thus far have been sound.

And even if it is ultimately decided that Ridley had provided a FAPE after all appeals are exhausted, it does not justify throwing the baby out with the bath water.

The stay put provision of the law is one of the few substantive procedural safeguards parents have to protect their children against a school district’s potential arbitrary and capricious removal of special education services and juggling of placements.

Trust me. If this procedural safeguard were weakened or removed, it would spell chaos for the nation’s schoolchildren with disabilities. School districts would be free to remove services and change placements on a whim in the name of administrative convenience and budgetary control.

Anyone who thinks this wouldn’t happen is living in a dream world.

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