United States Court of Appeals, District of Columbia Circuit
November 9, 2018
from the United States District Court for the District of
Columbia (No. 1:18-cv-00238)
Nabors argued the cause and filed the briefs for appellant.
E. Baum argued the cause and filed the brief for appellee.
Before: Rogers and Millett, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
Millett, Circuit Judge.
Individuals with Disabilities Education Act, 20 U.S.C. §
1400 et seq., creates a powerful statutory
presumption in favor of maintaining the current classroom
placement of a student with a disability when the school
seeks to change his placement over a parent's objections.
20 U.S.C. § 1415(j). That presumption is commonly known
as the "stay put" requirement. When a child with a
disability has been suspended from school, stay put heavily
favors promptly returning the child to the classroom. See
id. § 1415(k). As an adjunct to stay put, the
statute also entitles students with disabilities to
"appropriate" remedies like compensatory education
to make up for any academic shortfalls that occur during the
time they are kept out of school. See id. §
1415(i)(2)(C)(iii); Boose v. District of Columbia,
786 F.3d 1054, 1056 (D.C. Cir. 2015). The local educational
agency must overcome a heavy evidentiary burden to displace
the default rule that the child will stay put.
district court in this case wrongly denied a stay-put
injunction because it placed the burden of proof on the
student rather than the local educational agency. And that
error has continuing adverse consequences for the
student's claim for compensatory education. For those
reasons, we reverse and remand for further proceedings
consistent with this opinion.
Individuals with Disabilities Education Act
("IDEA") offers federal funding to States, the
District of Columbia, and other United States territories on
the condition that they provide children with disabilities a
"free appropriate public education" in the
"least restrictive environment." 20 U.S.C. §
1412(a)(1), (a)(5); 34 C.F.R. § 300.114-117; see
generally Fry v. Napoleon Community Sch., 137 S.Ct. 743,
748-749 (2017). One of the statute's key goals is to
integrate children with and without disabilities "[t]o
the maximum extent appropriate." 20 U.S.C. §
"primary vehicle" for securing an appropriate
public education is the child's "individualized
education program," which is commonly referred to as an
"IEP." Honig v. Doe, 484 U.S. 305, 311
(1988); see 20 U.S.C. § 1414(d). The "IEP
Team"-which includes school officials, teachers, and
parents-crafts the educational plan aimed at "meet[ing]
the child's needs" and "enabl[ing] the child to
be involved in and make progress in the general educational
curriculum[.]" 20 U.S.C. § 1414
(d)(1)(A)(i)(II)(aa), (d)(1)(B). The statute designates the
"local educational agency" as an integral member of
the IEP Team. Id. § 1414(d)(1)(B)(iv);
id. § 1401(19) (defining a local educational
agency as "a public board of education or other public
authority legally constituted ** * for either administrative
control or direction of, or to perform a service function
for, public elementary schools or secondary schools").
That local educational agency is responsible for ensuring
that the IEP Team both "reviews the child's IEP * *
* to determine whether [his or her] annual goals ** * are
being achieved[, ] and [also] revises the IEP as appropriate
to address" a lack of progress, the results of updated
evaluations or tests, and any "anticipated needs."
Id. § 1414(d)(4)(A). Certain public charter
schools, including E.L. Haynes Public Charter School
("School"), operate as their own local educational
agency for purposes of the IDEA. 34 C.F.R. §§
should come as no surprise that parents and school officials
sometimes disagree over a child's placement or the
details of an IEP. The IDEA provides formal dispute-
resolution procedures to address those conflicts. To start,
parents or local educational agencies may file a "due
process complaint" to challenge the current IEP or its
implementation. See, e.g., 20 U.S.C. §
1415(b)(6), (c)(2). That filing triggers a preliminary
meeting between the parties, id. §
1415(f)(1)(B)(i), as well as the option of mediation,
id. § 1415(e).
impasse persists, the case proceeds to an administrative
hearing-commonly referred to as a "due process"
hearing, 20 U.S.C. § 1415(f)(1)(A)-before a
"hearing officer" who is not "involved in the
education or care of the child," id. §
1415(f)(3)(A). The substantive touchstone for that proceeding
is always "whether the child [has] received a free
appropriate public education." Id. §
1415(f)(3)(E)(i). In the District of Columbia, the Office of
the State Superintendent for Education is the entity that
administers the due process hearings. See D.C. Code
Ann. § 38-2572.02.
end of that administrative process, any party still aggrieved
may bring a civil action in federal district court to
challenge the final administrative determination. 20 U.S.C.
§ 1415(i)(2)(A). Courts may "grant such relief as
[they] determine is appropriate" under the law.
Id. § 1415(i)(2)(C)(iii).
that this dispute-resolution process can take time, and that
parties will continue to disagree in the interim, the
IDEA's "stay put" provision strikes the balance
heavily in favor of maintaining the educational status quo
for students with disabilities until proceedings have
concluded. As relevant here, the IDEA mandates:
Except as provided in subsection (k)(4), during the pendency
of any proceedings conducted pursuant to this section, 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[.]
20 U.S.C. § 1415(j). To put it more simply, "all
handicapped children, regardless of whether their case is
meritorious or not, are to remain in their current
educational placement until the dispute with regard to their
placement is ultimately resolved." Mackey v. Board
of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158,
161 (2d Cir. 2004) (emphasis omitted) (quoting Susquenita
Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996)).
purpose of the stay-put command is to "strip schools of
the unilateral authority they * * * traditionally
employed to exclude disabled students * * * from
school." Honig, 484 U.S. at 323 (emphasis in
original) (interpreting predecessor provision codified at 20
U.S.C. § 1415(e)(3) (1988)). And the Supreme Court has
held that stay put applies "particularly [to]
emotionally disturbed students[.]" Id.
stay-put mandate is not without limits. The provision carves
out an express exception for proceedings "provided [for]
in subsection (k)(4)," which governs disciplinary
proceedings related to certain forms of student misconduct.
20 U.S.C. § 1415(j); see id. § 1415(k)(4).
Subsection (k)-titled "Placement in alternative
educational setting"-gives schools limited authority to
unilaterally suspend students with disabilities for such
misconduct. See 20 U.S.C. § 1415(k). When that
happens, the statute authorizes the school to place the
student in an "appropriate interim alternative
educational setting, another setting, or suspension, for not
more than 10 school days (to the extent such alternatives are
applied to children without disabilities)." Id.
§ 1415(k)(1)(B). That placement decision is to be made
on a "case-by-case basis," taking into account each
child's "unique circumstances." Id.
the statutorily prescribed ten-day window, the school must
determine whether the conduct was a "manifestation of
the child's disability." 20 U.S.C. §
1415(k)(1)(E)(ii). If it was, then the default rule is that
the child must be returned "to the placement from which
[he or she] was removed." Id. §
1415(k)(1)(F)(iii); 34 C.F.R. § 300.530(f)(2). If, on
the other hand, the misconduct was not tied to the
student's disability, then the school can pursue the same
disciplinary procedures that "would be applied to
children without disabilities[.]" 20 U.S.C. §
for disability-related misconduct, the presumption favoring
return of the student to school gives way when the misconduct
involves weapons, drugs, or-as relevant here- the infliction
of "serious bodily injury upon another." 20 U.S.C.
§ 1415(k)(1)(G); id. § 1415(k)(7)
(incorporating 18 U.S.C. § 1365(h)(3)'s definition
of "serious bodily injury"). In those "special
circumstances," the IDEA authorizes the school to
"remove [the] student to an interim alternative
educational setting for not more than 45 school days."
Id. § 1415(k)(1)(G).
misconduct covered by Section 1415(k) occurs, parents may
challenge either the "placement [or] manifestation
determination[s]" by requesting a due process hearing.
20 U.S.C. § 1415(k)(3)(A). Local educational agencies
may do the same if they "believe that maintaining the
current placement of the child is substantially likely to
result in injury to the child or to others[.]"
Id.; see id. § ...