One of the evils Congress sought to remedy with the passage of the Education for All Handicapped Act which was revised and renamed the Individuals with Disabilities Education Act in 1990 or "IDEA," was the unilateral exclusion of disabled children by schools. In passing this law, Congress was concerned about the widespread practice of relegating handicapped children to private institutions or warehousing them in special classes.
The IDEA provides children and parents rights in special education disputes including the right to stay put.
The law provides parents with rights in the event a dispute arises between them and a school district or a county office of education regarding a child’s individual education program, commonly called an "IEP". One of the purposes of the law is to prevent school officials from removing a child from a regular public school classroom over the parent's objection pending the completion of review proceedings concerning the child’s contested IEP. In such a situation, the law requires maintenance of “the status quo” for the student while the dispute is pending.
Stay put allows children to remain in their current educational placement pending resolution of a dispute.
Under the IDEA, during the resolution of a dispute, a child is entitled to remain in their current educational placement, which is commonly called the "stay put placement". The courts have recognized that in creating the “stay put” provision, Congress meant to deprive school 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.
For purposes of stay put, the current educational placement is typically the placement called for in the student's IEP that has been implemented prior to the dispute arising.
Stay put does not apply in certain circumstances.
For disciplinary matters concerning weapons, illegal drugs, or the infliction of serious bodily injury, the school district may immediately change a student’s placement to an interim alternative interim educational setting for up to 45 days without parent consent. There is no stay put requirement in such circumstances. A parent may challenge this placement by filing a special education due process complaint with the Office of Administrative Hearings.
A change in location does not, by itself, constitute a change in placement.
In a recent case, Oliver C. v. State of Hawaii Department of Education, the Ninth Circuit Court of Appeals held that a change in location, by itself, does not qualify as a change in educational placement. Instead, the Court determined that a change in placement occurs when there is a significant change in a student's educational program. This means that a child's stay put placement is not necessarily in a particular location, but is in a particular educational program.
In this case, after Oliver, who was a medically fragile preschooler and his parents moved to a new school district, but before he began attending school in the new school district, his parents filed a complaint against the new school district, objecting to the school the new school district had offered for their son. Oliver's parents believed the new school would be unable to accommodate their son's special needs. His parents also filed a motion for stay put, requesting that Oliver be allowed to remain in his old school, which was located in is old school district, pending the outcome of their case. His parents argued that moving Oliver to his new school would significantly change his educational placement.
The Court rejected this argument, observing that a change in location does not qualify as a change in educational placement. Because the program in the new school was comparable to the program in his previous school, and the new school would be capable of implementing his IEP, no change of placement had had occurred, and the IDEA's stay put provision did not apply as to Oliver's placement in his previous school.
If you have questions about stay put or other issues concerning your child's education, consider contacting a special education attorney for help.
Special education attorney Molly Watson
Serving children with special needs in California
Telepone: 530-273-2740
http://www.caledattorney.com
Please read our disclaimer.