There are only ten decisions on special education law by the U S Supreme Court, so it was a big deal last October when the high court requested briefs on a stay put appeal from the Justice Department. Our post on the topic may be found here. The brief filed by the Justice Department agreed with the interpretation of stay put rendered by the Third Circuit. You may read the Justice Department's brief here.
Unfortunately, on Monday of this week, the Supremes denied certiorari in the case of Ridley Sch Dist v MR by Parents, Docket No. 13-1547 By declining to consider the decision, the high court lets the ruling stand. See the SCOTUS Order here. Here is a helpful article in Education Week.
The controversy involved the stay put provision:
IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…” This is commonly referred to as the stay put provision. The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.
The Supreme Court interpreted and endorsed the stay put decision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988). In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision. Honig v. Doe, supra. (NOTE; please note that IDEA’04 has added other provisions pertaining to danger/injury.)
Two circuits, DC and the Sixth, had held that once a District Court rules that FAPE is provided, the stay put protection, even if the child is in private school, ends. (The decision by the DC Circuit was very old and sparsely worded, however.) So if the student is in private school, the school district no longer has to pay at that point. Two circuits disagree, the Third and Ninth, holding that stay put applies until the case is concluded, so in our example the public school district would be on the hook for tuition at the private school until the end of the case. The Ridley decision was the Third Circuit's interpretation.
The 6th circuit decision to which you refer was an "unpublished" decision and so has no precedential effect. The Supreme Court would not count it in deciding whether to grant review on the basis of a split in court authority.
ReplyDeleteAnon,
ReplyDeleteThanks for your comment.
As you know, I hate unpublished decisions.
JG