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Stay Put Essential to Protecting Student Rights During Hearing Pendency

Wednesday, July 30, 2014   (1 Comments)
Posted by: Denise Marshall
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In its amicus brief, filed July 28, the National School Boards Association and the National Association of State Directors of Special Education argue that the appeals court ruling puts a financial burden on districts, and disrupts the collaborative framework for resolving disputes that is written into special education law. They assert that under this decision, parents have an incentive to draw out their cases as long as possible, rather than trying to resolve them quickly. The case is M.R. et al. v. Ridley School District. Ridley, a district of 5,800 students, is located in suburban Philadelphia.  (See Special Education Administrators Urge Supreme Court Review of 'Stay Put' Ruling By Christina Samuels on July 29, 2014). 

Such an assertion is misguided, unfair, and unsubstantiated.  The purpose of stay-put is to protect the child while the adults in the child's life try to resolve their disagreement about what is appropriate. 

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. Parents and students are indeed often impacted by long delays in case resolution; however, such delays are rarely, if ever, of their doing.  

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. 

Here are a few examples to illustrate our point:

Katie, a young woman in Maryland with Down Syndrome, has been included in her neighborhood elementary school.  As Katie prepared to transition to Middle School, her parents were shocked and alarmed to learn that the school system planned to place her in a segregated classroom, despite her success at being included in elementary school.  Katie’s parents secured the services of an attorney at the non-profit Maryland Coalition for Inclusive Education (MCIE).  MCIE staff were able to help Katie’s parent’s navigate the often confusing special education laws to ensure that Katie’s right to a Free and Appropriate Public Education in the Least Restrictive Environment was achieved.  The effort required filing for Due Process and participating in a Hearing in which Katie’s parents prevailed.  The parents then had to spend more time, money and energy fighting a school system appeal of the Due Process Decision.  During the YEARS that this case was in US district court (federal court) Katie was in her neighborhood middle school, an inclusive placement pursuant to stay put.  Ultimately, Katie’s parents and the school system reached a Settlement that has led to Katie’s current successful program in her neighborhood high school. 
_______

Adele, a teenage girl in Connecticut with Smith-Magenis Syndrome has been placed in a residential program for 8 years, largely due to her self-injurious behaviors and the fact that she has a reverse circadian rhythm very common to this Syndrome.  The circadian rhythm reversal means she is often asleep during the day and awake all night, or unavailable for learning during the day because she is unable to sleep.  The residential program has not only done a wonderful job of managing Adele’s behaviors, but is able to provide her with educators in the night hours to make up for missed work when she is unable to stay awake during the day.  Adele comes home regularly and her family and she are thrilled with her placement.  With little warning and no transition planned, the district announced that it intended to change her placement to a day therapeutic program. The private school she is attending could not keep Adele without a contract with the district.  Adele’s parents hired a private attorney and filed for an emergency Due Process Hearing, which invoked stay-put.  The Hearing Officer ordered the stay-put placement literally on the eve of her discharge, allowing Adele to stay in her residential placement while the dispute is pending.  As the Hearing Officer advised “if stay-put is honored, the student should not be aware that there has been any dispute among the parents and educators because her program will continue along as it has been."
_______

J
ames was a 8th grader with cerebral palsy who attended middle school on a general education campus in a multiple disabilities special day program in California.  Part of his IEP included a toilet training program to address his needs in this area.  The facilities at the middle school were large enough to accommodate his wheelchair, assistant/nurse, adapted toilet and changing table in order to address this goal.  The school district proposed matriculation to a high school with a similar program but when parent visited the facilities she discovered the handicap accessible bathroom was not large enough to accommodate James’ equipment. Parents argued that stay-put was necessary in order for James to have access to facilities that met his unique needs, identified within his IEP, which could not be provided at the high school campus. An ALJ found that the school district had not established, for purposes of stay-put, that the proposed placement replicated his last agreed-upon education program at the middle school as closely as possible, and therefore ordered that James remain in the middle school program pending a hearing.  The parties later settled the matter and James remained an additional year at the middle school until changes could be made to the facilities at the high school.     


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 due process 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.

 

 

Comments...

Marcy Tiffany says...
Posted Wednesday, August 06, 2014
It was my understanding that a school district could file a motion for a preliminary injunction to modify the stay put. This procedure is expressly authorized in Honig v. Doe, 484 U.S. 305, 328 (albeit the focus is on dangerous students), and articulated in Doe v. Brookline School Committee, 722 F.2d 910, 919 (1st Cir. 1983) ("We hold that in view of the congressional preference for maintenance of the current educational placement, a party that seeks to modify an existing educational placement, program or services must proceed by a motion for preliminary injunction), although in that case the school district failed to do so and merely argued that stay put should not apply at the appellate level. I find it very curious that the 3rd Circuit purported to discuss the law as to stay put on appeal but ignored the Brookline decision. It seems to me that Brookline strikes a decent compromis, and is certainly better than a SC decision that stay put does not apply on appeal.

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