IDEA’s stay-put provision does not override school district’s right under state law to challenge charter school and parent’s decision to place student in private school

In a non-precedential decision, a three-judge panel of the U.S. Court of Appeals for the Third Circuit has affirmed a federal district court’s denial of special education student’s motion for a preliminary injunction ordering a school district to pay for the student’s private school placement during pendency of the suit to determine if the placement was appropriate under the Individuals with Disabilities Education Act (IDEA).

J.Y. attended Elysian Charter School of Hoboken (ECSH), where he was receiving special education services.  Under New Jersey law, a charter school prepares and implements an individualized education plan (IEP) for its students with disabilities, though the district of residence is responsible for tuition payments if the child is placed at a private school.  At the end of the 2008-2009 school year, ECSH officials prepared an IEP for J.Y. that called for his placement in a private school outside the school district for the 2009-2010 school year.  As required by New Jersey law, ECSH notified the district of residence, Bayonne School District (BSD), about the IEP. 

BSD exercised its right under state law to contest the IEP by initiating a due process hearing with the New Jersey Department of Education. It contended that an in-district placement of J.Y. would provide him with a free appropriate public education (FAPE) as required by IDEA. J.Y.’s request for a stay-put order placing him in the private school during pendency of the administrative hearing was denied. J.Y.’s parent then filed suit in federal district court alleging violations of IDEA. The parent sought a preliminary injunction requiring the J.Y. be placed at the private school and BSD to pay the private school tuition. The district court denied the motion for the preliminary injunction, determining that J.Y. should remain at ECSH during pendency of the suit. The court rejected the parent’s argument,based on IDEA’s stay-put provision,  that the private school was his "current education placement."  It stated that interpreting the “stay-put” provision in that way would negate BSD’s statutory right to challenge the placement under New Jersey law.

The Third Circuit panel found that "[w]hile determining a child’s current educational placement at the time a dispute begins may appear straightforward,"  in the present case the determination was complicated by the fact that J.Y was out of school at the time the latest IEP was challenged by BSD and he had not yet actually attended the private school.  As a consequence, J.Y. was not actively receiving instruction under either the most recent un-challenged IEP for the just completed 2008-2009 school year, or the disputed upcoming June 2009 IEP. It declined to adopt an interpretation of state law that would allow an IEP to be construed as "implemented" upon it being signed by a parent. It concluded such an interpretation would render the school district’s right to challenge the IEP in advance under state law "illusory."

Instead, the panel found that the interpretation that  best served the purpose of the stay-put provision to maintain the status quo during a dispute over the student’s placement while preserving the school district’s right under state law to challenge the IEP in advance, would be to read the current educational placement as the school the student attended under the previous IEP. Given that neither ECSH nor the private school actually represented J.Y.’s current placement because J.Y. was on summer break, the panel held "having J.Y. remain at Elysian while the dispute with regard to his placement is resolved hues closest to the plain meaning of the statutes as well as the congressional intent of maintaining the status quo, inasmuch as J.Y. never attended the [private school] and never received instruction under the June 9, 2009 IEP."

Finally, the panel found that J.Y. had failed the standard required for granting a preliminary injunction because he had not demonstrated a likelihood of success on the merits  of his claim that the June 2009 IEP would provide a FAPE as required by IDEA.

L.Y. v. Bayonne Bd. of Educ., No. 09-3741 (3d Cir. Jun. 10, 2010)

[Editor's note:  The dispute in this case illustrates the tension created when a separate legal entity such as a charter school may make IDEA programming decisions for which the district of residence is financially responsible.  The New Jersey statute at issue here provides the school district an opportunity to object before being obligated to pay for a program agreed to by the charter school and the parent.  Under the U.S. Supreme Court's June, 2009 decision in Forest Grove School District v. T.A., 129 S.Ct. 2484 (2009), school districts may be on the hook for a private school placement if the the family is able to prove that the district failed to provide FAPE, even if the student has not previously received special-education services from the public school.  NSBA and other national education groups filed an amicus brief in Forest Grove arguing that the IDEA framework provides multiple methods of timely dispute resolution, and requires parents to work with public school districts before being able to obtain unilaterally a publicly funded private school education.  See the links below.]

NSBA School Law Pages on Forest Grove School District v. T.A.

NSBA et al. Brief in Support of Forest Grove

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