K., Casey v. St. Anne Commun 302 , 400 F.3d 508 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3195
CASEY K. by NORMAN K. and MARI K.,
Plaintiffs/Counterdefendants-Appellees,
v.
ST. ANNE COMMUNITY HIGH SCHOOL
DISTRICT NO. 302,
Defendant/Counterplaintiff-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 2128—Joe Billy McDade, Judge.
____________
ARGUED DECEMBER 8, 2004—DECIDED MARCH 8, 2005
____________
Before FLAUM, Chief Judge, and POSNER and SYKES, Circuit
Judges.
POSNER, Circuit Judge. This appeal by an Illinois school
district presents a novel issue concerning the scope of the
“stay put” provision of the Individuals with Disabilities
Education Act, 20 U.S.C. § 1415(j). The Act requires
states such as Illinois that accept federal funding for the
education of disabled children to provide them with a “free
appropriate public education that emphasizes special
education and related services designed to meet their
2 No. 04-3195
unique needs and prepare them for employment and
independent living.” 20 U.S.C. § 1400(d)(1)(A); see id.,§ 1412(a); 34 C.F.R. § 104.33(a); Alex R. ex rel. Beth R. v.
Forrestville Valley Community Unit School Dist. #221, 375 F.3d
603, 611 (7th Cir. 2004); Missouri Dept. of Elementary
& Secondary Education v. Springfield R-12 School Dist.,
358 F.3d 992, 998-99 (8th Cir. 2004). The particulars of
the child’s program are required to be set forth in an “In-
dividualized Education Program” devised by school
officials in collaboration with the child’s parents. 20 U.S.C.
§ 1414(d). Hearing officers resolve disputes regarding the
IEP or its implementation. § 1415(f).
Casey K. was a student in the eighth grade of the St. Anne
Elementary School, a public school in St. Anne, Illinois. He
was and is severely dyslexic. His parents thought that the
school could not provide him with the educational services
to which the IDEA entitled him, and after enrolling him in
a “therapeutic” private school, the Acacia Academy, sought
a hearing pursuant to the IDEA to prove their contention
and make the school district pay for the cost of the private
school. The parties settled their dispute on March 4, 2004,
agreeing that Casey could remain in the Acacia Academy at
the expense of the school district until May 12, at which
time, under Illinois law, having reached the age of 15 he
would become the responsibility of the St. Anne Commu-
nity High School District No. 302. 105 ILCS 5/14-6.01; Board
of Education of Community Unit School Dist. No. 428 v. Board
of Education, 680 N.E.2d 450, 452 (Ill. App. 1997). For
although the elementary school and the high school are only
three blocks apart, they are each their own, separate school
districts (the elementary school is the St. Anne Elementary
School District No. 256), and thus each is a distinct “legal
entity,” with its own school board. 105 ILCS 5/10-10;
see Mueller ex rel. Math v. Community Consolidated School
No. 04-3195 3
Dist. 54, 678 N.E.2d 660, 665 (Ill. App. 1997); Board of
Education v. Regional Board of School Trustees, 460 N.E.2d 100,
105 (Ill. App. 1984); People ex rel. Smail v. Board of
Education, 99 N.E.2d 385, 387-88 (Ill. App. 1951).
Under the settlement agreement, the IEP that the ele-
mentary school district had devised for Casey was to expire
when he became the responsibility of the high school
district. May 12, Casey’s fifteenth birthday, arrived, and a
few days later the high school district issued an IEP for him,
as it was authorized by state law to do because it was a
different district from the district of the school from which
he was transferring. 23 Ill. Admin. Code § 226.50(h)(1). The
new IEP did not authorize Casey’s continued enrollment in
the Acacia Academy at the school district’s expense. The
parents challenged this determination and sought a hearing,
as they had before, at which they demanded that until the
challenge was resolved, Casey must be allowed to remain in
the Acacia Academy at the high school district’s expense,
pursuant to the stay-put provision. That provision states
that while proceedings to enforce rights under the Act are
pending, “the child shall remain in [his or her] then-
current educational placement” at the expense of what-
ever public entity issued the IEP that is being challenged, 20
U.S.C. § 1415(j); 105 ILCS 5/14-8.02a(l); Beth B. v. Van Clay,
282 F.3d 493, 496 (7th Cir. 2002); Mackey ex rel. Thomas M. v.
Board of Education, 386 F.3d 158, 160-61 (2d Cir. 2004); AW ex
rel. Wilson v. Fairfax County School Board, 372 F.3d 674,
679 (4th Cir. 2004), which in this case is the high school
district.
It is an open question whether, even if the parents lose
their challenge, they must reimburse the public entity for
the expense of the private-school placement to which the
child, it turns out, was not entitled. St. Tammany Parish
School Board v. Louisiana, 142 F.3d 776, 788-89 (5th Cir. 1998).
4 No. 04-3195
The Act doesn’t say; doubtless the draftsmen had in mind
that the stay-put provision would be invoked to keep the
child in his current public school (the preferred placement,
as we’ll see) rather than in a private school, although there
is no doubt that the state must pay for the private school if
the state’s own schools don’t have a program to which the
Act entitles a disabled child, and a private school does. 20
U.S.C. §§ 1412(a)(10)(B)(i), (C)(ii); School Committee v.
Department of Education, 471 U.S. 359, 369-70 (1985); Loren F.
ex rel. Fisher v. Atlanta Independent School System, 349 F.3d
1309, 1312 (11th Cir. 2003). The argument for giving the
parents a free ride is that otherwise they might be timid
about trying to enforce their statutory right to a free private
education in an appropriate case. The educational services
required by the Individuals with Disabilities Education Act
are often very costly—and when provided by a public
school, far beyond the means of the average public school
parent. The risk of an adverse decision by a hearing officer
that would require reimbursement of the private school’s
charges would deter many parents from enrolling their
child in a private school unless they were certain of their
right to do so.
The stay-put provision has been interpreted as imposing
an automatic statutory injunction, Honig v. Doe, 484 U.S. 305,
326-27 (1988); Rodiriecus L. v. Waukegan School Dist. No.
60, 90 F.3d 249, 253 (7th Cir. 1996); John T. ex rel. Paul T. v.
Delaware County Intermediate Unit, 318 F.3d 545, 556 (3d Cir.
2003), like the automatic stay in bankruptcy. The effect
of this interpretation is to make violation of the stay-put
provision punishable by contempt, but it is also, as we
shall see, to enable the district judge to exercise equitable
discretion with respect to the duration of the stay. The
district judge refused to lift the injunction (as we may
call the stay), precipitating this appeal by the high school
No. 04-3195 5
district. The district argues that if the automatic stay
requires a school district other than the one responsible
for the child’s current placement to pay for the continuation
of that placement while the parents are challenging
the district’s IEP, “receiving districts [will] be required to
fund private school placements all over the state and country
for as long as the parents continue[ ] challenging
the placement decisions of the new school district” (empha-
sis added).
The district concedes that if both the elementary school
and the high school were in the same school district, Casey
would be entitled to “stay put” in Acacia Academy, the
placement designated in the elementary school’s IEP for
him. Otherwise eighth graders wouldn’t enjoy the pro-
tection of the stay-put provision at all, or tenth graders
in a junior high school that ends in tenth grade even if,
when they left elementary school for junior high school,
or junior high school for (senior) high school, they remained
in the same building. It’s not as if the break between eighth
and ninth grade, or between tenth and eleventh grade, is so
much sharper than any other grade break as to make
temporary continuation of the previous educational place-
ment inappropriate.
We cannot see what difference it makes if a state de-
cides that the elementary school and the high school serving
the same pool of kids shall be deemed to constitute separate
school districts. Whatever motivates such decisions (proba-
bly they are relics of a time when kids were required to
attend school only through the eighth grade) has nothing to
do with the purpose behind the stay-put provision. We are
told that Illinois once had 950 school districts; were it to
reinstate that number, the effects on the stay-put provision
would be profound. We cannot see why such a decision
6 No. 04-3195
should affect the rights created by a federal statute, or why
Congress would have countenanced a state’s diminishing
those rights simply by designating every public school a
separate school district. IDEA is a program of financial
assistance to states conditioned on the states’ complying with
certain requirements of the Act, such as paying for the
private education of disabled children in some instances.
From the Act’s standpoint the state is an indivisible unit. It
must not be allowed to crawl out from under the Act’s
requirements—while retaining the federal money that it gets
in exchange for submitting itself to those requirements—by
multiplying the number of its school districts. It would
make no sense if, simply by dividing all its school districts
in half and thus doubling their number, a state could reduce
the expense to it of compliance with the conditions in IDEA
without surrendering a penny of IDEA funds.
It is entirely understandable that the St. Anne high
school should not want to fund the elementary school’s
settlement with Casey’s parents, which is, in effect, what the
stay-put provision is compelling it to do. The settlement was
attractive to the elementary school because it required the
school to pay for only nine weeks of Casey’s stay at the
Acacia Academy. It is arguable that before Casey should be
allowed to remain in a private school at public expense,
either the high school or a hearing officer should decide
whether the public school can provide adequate services to
the child. Expense is not the only issue; placing a child in a
school for disabled children runs contrary to the policy of
the IDEA of “mainstreaming” disabled children to the
“maximum extent appropriate.” 20 U.S.C. § 1412(a)(5)(A);
see Honig v. Doe, supra, 484 U.S. at 311; Board of Education v.
Rowley, 458 U.S. 176, 202-03 (1982). The “removal of children
with disabilities from the regular educational environ-
No. 04-3195 7
ment occurs only when the nature or severity of the dis-
ability of a child is such that education in regular classes
with the use of supplementary aids and services cannot
be achieved satisfactorily.” Id. (emphasis added). The
placement decision must be made in conformity with this
statutory “least restrictive environment” requirement and
must ensure that “the child is educated in the school that he
or she would attend if nondisabled” unless the
child’s educational program “requires some other ar-
rangement.” 34 C.F.R. §§ 300.552(a)(2), (c). Sometimes it
does require that; but it can be argued that the step was
taken too lightly here in what amounted to a litigation
settlement between an elementary school that would shortly
have no further responsibility for the child and the child’s
parents.
That, however, is an issue for another day; it is not argued
by the high school district. The district does complain about
the settlement, but only because it was not a party to it. It
does not argue that a settlement agreement cannot create a
current educational placement; quite the contrary, it as-
sumes that the settlement agreement created a valid place-
ment for Casey in the Acacia Academy so long as he was
under the jurisdiction of the elementary school district. The
high school district’s entire legal argument for reversal, so
far as we can discern, pivots on the fact that the state has
placed the elementary school and the high school in sepa-
rate districts. If they constituted a single district, the high
school would be a party to the settlement agreement.
We add that as far as expense (as distinct from what is
best for the child) is concerned, nothing compels the State of
Illinois to allow the elementary school to shift the cost of
Casey’s continued stay at the Academy to the high school
district. The state can allocate financial responsibilities
8 No. 04-3195
among school districts as it pleases, so far as the IDEA is
concerned. Each state has plenary authority over its public
schools and can make appropriate arrangements for cost
sharing across district lines if a child transfers to another
district and his parents challenge the new district’s Individ-
ual Educational Placement. There is no collision between
state and federal interests.
The question presented by the state’s curious districting
is novel, as we said, and the only previous case the parties
or we have been able to find that might seem to bear
directly on it is Johnson ex rel. Johnson v. Special Education
Hearing Office, 287 F.3d 1176 (9th Cir. 2002) (per curiam).
The school district reads the Johnson opinion hopefully
to mean that when a child moves across district lines
the stay-put provision no longer requires that the child
receive exactly the services he was previously getting. For
the court in Johnson said that a disabled child is only entitled
to a “comparable educational placement.” But
the “comparable” placement in that case involved the
identical curriculum and the identical tutors and thus, as the
court emphasized, was functionally identical to the child’s
prior placement, while the allegedly “comparable” place-
ment that our district proposes would take Casey out of his
private school and into a public school with completely
different teachers, curriculum, and classmates. It was thus
only in the most technical sense that by allowing the new
district to call the tune the court in Johnson was dissolving
the automatic injunction—and the court certainly nowhere
said or suggested that it thought the injunction had automat-
ically lapsed just because the child had left the district. See
also Ms. S. ex rel. G. v. Vashon Island School Dist., 337 F.3d
1115, 1133-34 (9th Cir. 2003). There is some questionable
language in Johnson that could be read to suggest that the
automatic injunction isn’t really automatic—it is—though
No. 04-3195 9
what is true is that the automatic injunction can be dissolved
for a compelling reason. Id. at 1180; see also Honig v. Doe,
supra, 484 U.S. at 325-28; Board of Education of Oak Park &
River Forest High School Dist. 200 v. Illinois State Board of
Education, 79 F.3d 654, 660 (7th Cir. 1996); Light v. Parkway
C-2 School Dist., 41 F.3d 1223, 1227-28 (8th Cir. 1994). But the
fact that the old school and the new, though only blocks
apart, are separated by a district line is not a good reason,
let alone a compelling one, and no other has been offered.
The district warns us that if we affirm, Casey’s parents
will be able to move him to Alaska and force the public
school district in which they settle to pay for Casey’s
continued enrollment in the Acacia Academy while they
challenge whatever IEP the Alaska district devises for the
child. There is no way in which Alaska could limit the
largesse of an Illinois elementary school, which might agree
to a very generous settlement indeed if it thought the child
about to move to another state. But here is where the courts’
treatment of the stay-put provision as an injunction has bite.
If the schools were in different states (perhaps even if they
were in different areas of the same state, though that we
needn’t try to decide), and if as a result the refusal to lift the
automatic injunction would impose an unreasonable burden
on the transferee school, the district court could exercise its
equitable discretion to modify or dissolve the injunction.
That is not the case here.
AFFIRMED.
10 No. 04-3195
SYKES, Circuit Judge, dissenting. I respectfully dissent.
Acacia Academy was not Casey K.’s “then-current educa-
tional placement” for purposes of the “stay-put” provision
of the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. § 1415(j).
As the court notes, the IDEA requires states that accept
federal funding for the education of disabled children to
provide them with a “free appropriate public education,”
the specific components of which are established in the
child’s Individualized Education Program (IEP), which is
reevaluated at least annually. 20 U.S.C. §§ 1400(d)(1)(A) and
1414(d). A child’s IEP assesses his educational
needs, identifies achievement goals, and specifies the special
education and related services to be provided in furtherance
of those goals. Id. The Act calls for a collaborative process
between parents, teachers, and special education adminis-
trators in the development of a disabled child’s IEP and the
determination of his educational placement. 20 U.S.C. §
1414(d). The Act requires states to establish an impartial
administrative hearing process for the resolution of parental
complaints, guarantees certain minimum procedural
safeguards, and provides for judicial review. 20 U.S.C. §
1415(a)-(i). The so-called “stay-put” provision, at issue here,
provides that during the pendency of administrative and
judicial proceedings conducted pursuant to the Act, “the
child shall remain in the then-current educational placement
of such child.” 20 U.S.C. § 1415(j).
The IDEA does not define the term “educational place-
ment.” As a general matter, “ ‘educational placement,’ as
used in the IDEA, means educational program—not the
particular institution where that program is implemented.”
White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.
2003). The IDEA’s implementing regulations require that the
No. 04-3195 11
“placement decision” be made by a “group of persons,
including the parents, and other persons knowledgeable
about the child, the meaning of the evaluation data, and
the placement options.” 34 C.F.R. § 300.552(a)(1). The child’s
placement “is based upon the child’s IEP,” 34 C.F.R. §
300.552(b)(2), and the “IEP Team” must consider the unique
strengths and needs of the child and the options available
for his education. 20 U.S.C. §§ 1414(d)(1)(A), (B); 20 U.S.C.
§§ 1414(d)(2), (3).
This circuit has adopted a contextual approach to deter-
mining a child’s educational placement for purposes of
the stay-put obligation. Bd. of Educ. of Cmty. High Sch.
Dist. No. 218 v. Ill. State Bd. of Educ., 103 F.3d 545, 548-49 (7th
Cir. 1996). We said in Illinois State Board of Education that the
meaning of the term “educational placement” in the Act’s
stay-put provision “falls somewhere between the physical
school attended by a child and the abstract goals of a child’s
IEP.” Id. at 548. Determining the scope of stay-put in
individual cases is “something of an inexact science,” one
that depends upon the context and facts of each case,
considered against the purposes of the IDEA. Id. at 548-49.
For example, we noted in Illinois State Board of Education
that in expulsion cases a child’s “educational placement”
generally means his school, so that “a change of school is
interpreted as a change in placement.” Id. at 549. In the
expulsion context, interpreting “educational placement” to
mean the child’s school of attendance “is in keeping
with [the] original purpose of the Education of the Handi-
capped Act: Congress passed the act to prohibit schools
from excluding from the classroom difficult disabled
students.” Id. (citing Honig v. Doe, 484 U.S. 305, 309-10
(1988)). On the other hand, “[w]here fiscal concerns
cause a student to be transferred, the courts focus not on the
12 No. 04-3195
school, but on the child’s general educational program. This
looser interpretation of placement is appropriate because the
concern is not whether the school is attempting to rid itself
of a disabled child or that a disabled student has been
placed in an inappropriate school.” Id.The court’s analysis in this case sidesteps a determina-
tion of Casey’s “then-current educational placement” and
overlooks certain core requirements of the IDEA and
some important facts underlying Casey’s present attendance
at Acacia. Educating disabled children outside of public
school is strongly disfavored under the IDEA; the Act
contains a “mainstreaming” presumption, requiring that
disabled children be educated in the least restric-
tive environment and in school with nondisabled students
“[t]o the maximum extent appropriate.” 20 U.S.C.
§ 1412(a)(5)(A); see also Honig, 484 U.S. at 311; Board of
Education v. Rowley, 458 U.S. 176, 202-03 (1982). The Act
provides that “removal of children with disabilities from the
regular educational environment occurs only when the
nature or severity of the disability of a child is such that
education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.” Id.(Emphasis added). The IEP Team’s placement decision must
be made in conformity with this statutory “least restrictive
environment” requirement and must ensure that “the child
is educated in the school that he or she would attend if
nondisabled” unless the child’s educational program
“requires some other arrangement.” 34 C.F.R.
§§ 300.552(a)(2), (c).
Of course, parents are free to reject an IEP and the educa-
tional placement offered by their local educational agency
(LEA) and enroll their child in the private school of their
choice, as Casey’s parents did here. But this is at the parents’
own expense—at least initially. The IDEA specifically
No. 04-3195 13
provides that local educational agencies are not required to
pay for the education of a child enrolled in private school by
his parents without the consent of or referral by the LEA:
“This subchapter does not require a local educational
agency to pay for the cost of education . . . of a child with a
disability at a private school or facility if that agency made
a free appropriate public education available to the child
and the parents elected to place the child in such private school or
facility.” 20 U.S.C. § 1412(a)(10)(C)(I) (Emphasis added). The
Act provides for the possibility of reimbursement for a
unilateral parental private school placement, but only if a
“court or hearing officer finds that the agency had not made
a free appropriate public education available to the child in
a timely manner prior to [the unilateral private school]
enrollment.” 20 U.S.C. § 1412(a)(10)(C)(ii). A school dis-
trict obviously has no stay-put obligation under § 1415(j)
to pay for the unilateral parental private school place-
ment until the reimbursement claim is decided in the
parents’ favor.
Together, these provisions in the IDEA and its implement-
ing regulations operate to establish this predicate
for a private school “educational placement”: there must
first be a determination that the LEA either cannot or has
not fulfilled its obligation to provide a free appropriate
public education to the disabled child in the public school.
This determination is made by the LEA itself, through
the IEP process (in which case it makes the private
school placement), or by a hearing officer or a court,
where the LEA and the parents disagree about the appropri-
ateness of the placement proposed by the IEP Team. A
unilateral private school placement by a child’s parents does
not become the child’s “then-current educational placement”
for purposes of stay-put unless and until the LEA acknowl-
edges that mainstreaming in the public school is inappropri-
14 No. 04-3195
ate or a hearing officer or court determines that the LEA has
failed to timely provide a free appropriate public
education.1
Neither of these things has occurred here. The administra-
tive process initiated by Casey’s parents after they enrolled
1
Thus, the court’s reference to “giving the parents a free ride”
because “otherwise they might be timid about trying to en-
force their statutory right to a free private education” some-
what overstates the matter. See supra p. 4. There is no general-
ized right to a free private education under the IDEA. The IDEA
guarantees a “free appropriate public education”; parents who
unilaterally enroll their child in private school have a right to
reimbursement of private school costs if a hearing officer or court
determines that the LEA failed to provide a “free appropriate
public education.” There is no “free ride” in this situation
because the school district has no obligation to pay on a reim-
bursement claim until it has been adjudicated in the parents’
favor. It is a separate question whether parents can be required
to “reimburse” a school district that pays on a private school
reimbursement claim that has been adjudicated against it by a
hearing officer but is later overturned— perhaps not, for the
reasons stated by the court. Id. But this does not mean that
parents have a right to have their unilateral private school
decision recognized as a stay-put placement (triggering the
school district’s obligation to pay) before its appropriateness has
been adjudicated by a hearing officer. There is no such private
school “free ride” under the IDEA. Moreover, the right to private
school reimbursement, once adjudicated, does not go on indefi-
nitely, but only while the school district is noncompliant (or
acknowledges its inability to comply) with its obligation to
provide a “free appropriate public education.” See Sch. Comm. of
the Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 371-74 (1985);
Monticello Sch. Dist. No. 25 v. George L., 102 F.3d 895, 905-06 (7th
Cir. 1996).
No. 04-3195 15
him at Acacia was aborted by the March 4, 2004, settlement
agreement between the parents and the elementary district.
As the court notes, because Casey would soon turn fifteen
and become the responsibility of the high school district, the
elementary district made a prudential litigation decision: it
agreed to pay Casey’s tuition and transportation costs at
Acacia from February 19, 2004, to May 12, 2004, his fifteenth
birthday, when responsibility for his education would
transfer to the St. Anne Community High School District.
Importantly, however, the elementary district con-
tinued to maintain that it could provide a free appropriate
public education to Casey at St. Anne Grade School pur-
suant to the IEP that his parents had rejected—in other
words, that Casey could be successfully “mainstreamed.”
The settlement agreement restated the district’s position
in this regard and contained the standard nonadmission
of any liability or violation of federal or state law. The
agreement called for an interim IEP to be developed for
Casey at Acacia for purposes of carrying out the terms of the
settlement and to comply with the IDEA for the
short duration of the agreement but did not purport to
effectuate a private “educational placement” for Casey at
Acacia. An IEP meeting was convened on March 25; the IEP
document reflects that the purpose of the meeting
was limited to the “settlement agreement” and estab-
lishes an IEP termination date of May 12, 2004, “per agree-
ment between Parents & District.” The section of the IEP
that would ordinarily contain the IEP team’s evaluation of
the least restrictive environment for the child’s
education—which requires an explanation of the team’s
consideration and rejection of all public school “main-
streaming” options before private school placement is
considered—is left blank, except for a notation that place-
ment at Acacia was “as per agreement.”
16 No. 04-3195
Accordingly, the settlement agreement and the limited
term IEP developed in its aftermath did not amount to
a private school educational placement under the IDEA
for purposes of triggering the stay-put obligation. No
hearing officer or court has determined that the elemen-
tary district failed to timely provide Casey with a free
appropriate public education before Casey’s parents
enrolled him at Acacia or that private school was appropri-
ate. See 20 U.S.C. § 1421(a)(10)(C)(ii). Pursuant to the
settlement agreement, Casey’s parents withdrew their
administrative reimbursement claim against the elementary
district; it was never adjudicated on its merits. Nor has the
LEA determined that because of the nature and severity of
Casey’s disability, a free appropriate public education
cannot be satisfactorily provided in the regular public
school environment. See 20 U.S.C. § 1412(a)(5)(A).
The short-term IEP put in place pursuant to the settlement
agreement was hardly the result of a bona fide IEP process
of the deliberative sort contemplated by the statute and
regulations. It was a financial expedient, not a reasoned
educational placement decision. There was never any
consideration of available placement options or the least
restrictive environment for Casey’s education; that Casey
would be schooled at Acacia was a foregone conclusion
given his parents’ unilateral decision to place him there. The
elementary district consistently maintained that it was
willing and able to provide Casey with a free appropriate
public education and never conceded that the private school
was appropriate as a least restrictive educational placement.
See Mayo v. Balt. City Pub. Schs., 40 F. Supp. 2d 331, 334 (D.
Md. 1999) (“BCPS agreed to pay Thurston’s tuition but did
not agree that it was unable to provide a free, appropriate
public education to Thurston or that Norbel [a private
school] was an appropriate placement for Thurston.”).
No. 04-3195 17
Thus, Casey’s attendance at Acacia remains as it was:
a unilateral decision by parents to send their child to private
school. It cannot be invoked by Casey’s parents as his “then-
current educational placement” for purposes of the high
school district’s stay-put obligation in connection with the
present dispute. The elementary district’s temporary and
conditional acquiescence in the parents’ unilateral action
cannot constitute an “educational placement” for purposes
of the stay-put requirement. The statutory injunction
prevents deviation from an educational program arrived at
through the intricate and deliberative IEP process while
parental challenges to proposed changes in that program are
worked out. Here, however, it is the child’s parents who
altered the status quo: Casey’s parents rejected his eighth
grade IEP, withdrew him from the public school, enrolled
him in private school, and are now seeking to have their
unilateral action recognized as an “educational placement”
for purposes of the stay-put obligation in connection with
their dispute with the high school district. This turns stay-
put on its head. See Monticello Sch. Dist. No. 25 v. George L.,
102 F.3d 895, 905 (7th Cir. 1996) (“The ‘stay put’ provision
is meant to preserve the status quo during such due process
hearings. However, the parents’ analysis of that provision
would reverse that concept and create a new, permanent
‘stay put’ for a unilateral [private school] placement.”).
The temporary IEP now invoked by Casey’s parents
for purposes of the stay-put obligation was put in place
not by a collaborative educational evaluation but pursu-
ant to a limited financial settlement. “Payment and place-
ment are two different matters.” Zvi D. v. Ambach, 694
F.2d 904, 908 (2d Cir. 1982). It is unclear to me why such a
stop-gap financial compromise should be considered an
“educational placement” at all, much less the child’s “then-
18 No. 04-3195
current educational placement” for purposes of stay-put; the
agreement and the interim IEP expired on May 12, 2004. The
court’s application of the stay-put requirement to this
unilateral parental private school enrollment conflicts with
the IDEA’s explicit preference for mainstreaming, its
elaborate IEP process, and its proviso that private school
costs need not be reimbursed until certain factual predicates
are either admitted or proven to the satisfaction of a hearing
officer or a court.
Other courts have held that a unilateral parental private
school placement becomes a child’s “then-current educa-
tional placement” for purposes of the stay-put require-
ment only after there has been an administrative deter-
mination that the private school placement is appro-
priate. See Clovis Unified Sch. Dist. v. Cal. Office of Admin.
Hearings, 903 F.2d 635, 641 (9th Cir. 1990); Zvi D., 694 F.2d
at 906-07; see also Mayo, 40 F. Supp. 2d at 333-34; Saleh
v. District of Columbia, 660 F. Supp. 212, 215 (D. D.C. 1987).
I agree with the decisions of these courts.
It is true that in its argument before this court, the high
school district focused primarily on the legal effect of
Casey’s transfer from the elementary school district to the
separate high school district. However, the school district
did assert (albeit as a secondary argument and less com-
pletely than I have explained here) that Acacia cannot
be considered Casey’s “then-current educational placement”
for purposes of stay-put because it was a unilateral parental
private school placement, because it violated the IDEA’s
“mainstreaming” requirements, and because it was a short-
term settlement expedient and not the product of an IEP
process that determined its appropriateness. Accordingly,
I cannot agree with the court that the school district failed to
No. 04-3195 19
argue this issue.2
Regarding the legal effect of the interdistrict transfer,
I agree with the reasoning of Johnson v. Special Education
Hearing Office, 287 F.3d 1176, 1181-82 (9th Cir. 2002), that a
transfer of responsibility from one distinct educational
agency to another has relevance for stay-put analysis.3
2
I acknowledge the inconsistency in the high school district’s
argument, which is noted by the court: the district asserted
that Acacia is not Casey’s “then-current educational placement”
under what it called “traditional stay-put analysis,” but also
suggested that the elementary school district would have
been required to finance Casey’s continued education at
Acacia under stay-put had Casey remained under the elementary
district’s jurisdiction.
3
At issue in Johnson v. Special Education Hearing Office, 287
F.3d 1179 (9th Cir. 2002) was the application of the stay-
put provision where responsibility for a disabled child’s edu-
cation shifted from one educational agency to another because of
the child’s age. Johnson involved a preschool child who,
while under the age of three, received special education ser-
vices pursuant to a program established and implemented by
a regional public educational agency. Id. at 1178. When the
child turned three, the responsibility for his education transferred
from the regional agency to the local school district; the local
district developed an IEP that used the same goals, objectives,
and services as the child’s previous program with most, but not
all, the same service providers (the child’s tutors were the same,
but the local district substituted its own supervisors). Id. at 1179-
82. The child’s parents were dissatisfied and initiated a due
process hearing; they also filed a stay-put request with the
administrative hearing office asserting entitlement to exactly the
same service providers as under the regional agency’s educa-
tional program. The administrative hearing office adopted the
local school district’s interpretation of the stay-put obligation in
(continued...)
20 No. 04-3195
Illinois has promulgated regulations governing interdis-
trict transfers, which generally require the receiving dis-
trict to implement the former district’s IEP until it develops
one of its own. See 23 Ill. Adm. Code 226.50(h). However, for
the more fundamental reasons discussed above, I conclude
that Acacia is not Casey’s “then-current educational
placement” for purposes of the stay-put obligation under §
1415(j).
3
(...continued)
this situation and issued a stay-put order requiring the district to
implement the regional agency’s program except that the district
“need not utilize the same vendors who provided services under
that [program].” Id.
The parents filed for injunctive relief in district court. The
district court denied relief and the Ninth Circuit affirmed. Id. The
court noted that when responsibility for a child’s education shifts
from one educational agency to another, “the status quo necessar-
ily changes.” Id. at 1181. The court held that where a disabled
child “transitions between educational agencies,” the transferee
district “can meet the requirements of the ‘stay-put’ provision by
providing [a] comparable educational placement.” Id. at 1181. The
hearing office’s stay-put order was consistent with the statute
because it “maintained the stability of [the child’s] educational
program as contemplated by the ‘stay-put’ provision, while
taking into account the reality of a shift in responsible educa-
tional agencies.” Id. at 1182. Because the educational program
developed by the local school district was comparable to that
which had been provided by the regional agency (only the plan
supervisors were different), “the ‘stay-put’ order correctly
determined [the child’s] ‘then current educational placement’ ”
for purposes of § 1415(j). Id. at 1182.
USCA-02-C-0072—3-8-05
No. 04-3195 21
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit