Summary: The U.S. District Court for Southern California issued a preliminary injunction ordering a student to “stay put” at a private school placement after the student transferred school districts and the student’s new district suggested an interim placement at one of its public schools. D.G. v. San Diego Unified School District, 115 LRP 47750 (Sept. 21, 2015).
Facts: Student was a 12-year-old with autism. Until June 2015, Student lived within the Del Mar Union School District. From 2011 to 2015, Student was placed in a nearby private school pursuant to an IEP. Had Student not moved, he would have matriculated to the San Dieguito Union High School District in July 2015. However, Student moved to and enrolled in the neighboring San Diego Unified School District in early June 2015.
Within a week of receiving Student’s enrollment paperwork, San Diego personnel met with Student’s parents and offered an interim placement at one of San Diego’s public middle schools. The parents did not consent and filed a due-process complaint with OAH six days later, followed quickly by a motion on June 23 for Student to “stay put” at the private school pending the outcome of the due process-complaint.
San Diego opposed the stay-put motion, arguing that Student’s placement at the private school was temporary because the IEP explicitly said the private placement would only be funded through June 30, 2015. The OAH administrative law judge agreed with San Diego and denied the motion for stay-put. Student quickly appealed to the U.S. District Court and both parties raised new arguments regarding Student’s “then-current educational placement” for purposes of IDEA stay-put.
Issue: When a transfer student files a stay-put motion, is the student’s “then-current educational placement” either (a) the student’s placement under the last-agreed upon IEP from the student’s former district, or (b) the comparable offer from the student’s new district?
Holding: When a transfer student’s parents disagree with a new school district about a most appropriate placement and file a stay-put motion, the student’s “then-current educational placement” is the student’s placement under the last-agreed upon IEP, even if the new school district was not a party to that IEP.
Discussion: Under IDEA, when a due-process complaint has been filed, “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, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.” 20 U.S.C. § 1415(j).
A “motion for stay-put” argues that a local educational agency has violated 20 U.S.C. § 1415(j) by changing a student’s placement pending the resolution of a due-process complaint. In considering stay-put motions, the Ninth Circuit Court of Appeals has observed that they function “as an ‘automatic’ preliminary injunction,” so that “a student who requests an administrative due process hearing is entitled to remain in his educational placement regardless of the strength of his case or the likelihood he will be harmed by a change in placement.” Joshua A. v. Rocklin Unified Sch Dist., 559 F.3d 1036, 1037 (9th Cir. 2009); A.D. v. Hawaii Dep’t. of Educ., 727 F.3d 911, 914 (9th Cir. 2013).
But what is a student’s “current educational placement”? IDEA does not define the term, but courts generally interpret the phrase to mean the placement set forth in a student’s last implemented IEP. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 902 (9th Cir. 2009). More specifically, it means “the general educational program of the student,” and a change in placement occurs when a student moves from one type of program to another (i.e., a regular class to home instruction), or when there is a “significant” change to a student’s program even if the student remains in the same setting. N.D. v. Hawaii Dep’t. of Educ., 600 F.3d 1104, 1116 (9th Cir. 2010).
Here, the District Court disagreed with San Diego’s arguments and OAH’s denial of the stay-put motion. First, the District Court found that at the time Student filed his due-process complaint, his current placement was at the private school. Even if OAH was correct in concluding that the IEP only temporarily placed Student there through June 30, 2015, Student filed his due-process complaint in early June when he was still placed at the private school. The fact that Student’s parents had filed enrollment forms with San Diego did not change this analysis.
San Diego argued that Student’s transfer caused “the status quo underlying the ‘stay put’ provision to no longer exist,” and that Student’s “current placement” effectively became San Diego’s first offer after Student’s parents submitted enrollment paperwork.
The District Court disagreed, holding that when a dispute arises under IDEA involving a transfer student, a student’s new school district satisfies IDEA by implementing the last-agreed upon IEP or, if that is impossible, by adopting a plan that approximates the last agreed-upon IEP as closely as possible. Here, San Diego could not argue that it was impossible to continue Student’s placement because San Diego had other students actively placed at the same private school.
Practice Pointer: When a new student enrolls with your local educational agency and the student has an existing IEP, remember that in event of a dispute over the appropriateness of the student’s placement, you must implement the student’s last agreed upon and implemented IEP during the pendency of any administrative or judicial proceeding involving a due process complaint unless the LEA and the parent agree otherwise. An exception arises if it is impossible to maintain the student’s former placement, but proving this is very fact-dependent.