Stay Put Essential to Protecting Student Rights During Hearing: Reprint of Amicus Brief filed by Council of Parent Attorneys and Advocates

Stay Put Essential to Protecting Student Rights During Hearing: Reprint of Amicus Brief filed by Council of Parent Attorneys and Advocates

Below is a reprint of a recent press release by COPAA.  It contains a good legal analysis of the importance of “stay put” .

In its amicus brief, filed July 28, the special education administrators and the school boards association 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. 

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 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.

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