Autism, Burlington, and Change: Why It Is Time for a New Approach to the IDEA's Stay-Put Provision

• Author: Michael A. Brey
• Position: J.D. Candidate, The University of Iowa College of Law, 2016; B.S., B.A., University of Utah, 2013
• Pages: 745-777

745

Autism, Burlington, and Change:

Why It Is Time for a New Approach to the

IDEA’s Stay-Put Provision

Michael A. Brey

ABSTRACT: The “stay-put provision” of the Individuals with Disabilities

Education Act (“IDEA”) serves as an “automatic preliminary injunction” to

prevent any change in a student’s then-current educational placement until

the student’s parents and the local educational agency (usually a school

district) resolve a dispute over the student’s education through administrative

and judicial proceedings. The stay-put provision not only prevents schools

from excluding students, but also prevents students from being whipsawed

between placements as the school district and parents appeal adverse

decisions.

Today, the proper application of the stay-put provision continues to be hotly

contested, most recently in the circuit split identified by the Third Circuit’s

decision in M.R. v. Ridley School District. Critical to—but not disputed

in—Ridley School District is the one-sentence dictum regarding the stay-

put provision’s agreement exception from the 1985 Supreme Court case

School Committee of Burlington v. Department of Education.

Although the Burlington dictum was not binding precedent and is easily

distinguished, lower courts applied it with such reflexivity that the U.S.

Department of Education eventually promulgated a regulation for no other

stated reason than to codify “this longstanding judicial interpretation.”

Surprisingly, however, Burlington’s interpretation of the agreement

exception has rarely been scrutinized or justified. As a result and for the first

time, this Note comprehensively scrutinizes the Burlington dictum and its

possible rationales, and concludes that it is time for the courts and the

Department of Education to abandon the dictum in light of recent changes to

 J.D. Candidate, The University of Iowa College of Law, 2016; B.S., B.A., University of

Utah, 2013. Thank you to Amanda Beggs, Peter Chalik, Josh Feil, Vince Geis, Jessica Donels, Josh

Irwin, Dylan McKinnon, Emily Summers, Kimberly Topel, and the many Iowa Law Review editors

and student writers for their helpful comments and suggestions; thank you to my mother and

father for their tireless dedication to students and for teaching me in life and in love; and special

thanks to Matthew, my “buddy,” for inspiring this Note.

746 IOWA LAW REVIEW [Vol. 101:745

the IDEA and the unnecessary instability it creates for students with

disabilities—especially those with autism spectrum disorder.

I. INTRODUCTION ............................................................................. 747

II. IDEA ORIGINS AND FUNDAMENTALS ............................................ 749

A. THE HISTORICAL TREATMENT OF STUDENTS WITH DISABILITIES

AND THE PUSH FOR CHANGE .................................................... 750

B. BASIC REQUIREMENTS OF THE IDEA ......................................... 752

1. Free Appropriate Public Education ............................. 753

2. Individualized Education Program .............................. 754

3. Least Restrictive Environment ..................................... 755

4. Related Services ............................................................. 755

5. Procedural Protections ................................................. 756

C. THE STAY-PUT PROVISION ....................................................... 757

1. Purposes of the Stay-Put Provision ............................... 757

2. Applying the Stay-Put Provision ................................... 758

i. Identifying the Student’s “Then-Current Educational

Placement” ................................................................ 758

ii. Applying the Stay-Put Provision Through Judicial

Appeals ..................................................................... 759

III. THE DICTUM AND INSTABILITY OF THE BURLINGTON

INTERPRETATION .......................................................................... 760

A. THE STAY-PUT PROVISION’S AGREEMENT EXCEPTION ............... 761

B. SCHOOL COMMITTEE OF BURLINGTON V. DEPARTMENT OF

EDUCATION ........................................................................... 763

C. BURLINGTON’S INADVERTENT INSTABILITY ............................. 766

1. The Innocuity of the Burlington Interpretation in

Burlington ....................................................................... 766

2. The Instability of the Burlington Interpretation in Other

Situations ....................................................................... 766

D. INSTABILITY’S EFFECTS ON STUDENTS WITH AUTISM SPECTRUM

DISORDER ............................................................................... 768

E. INADEQUATE RATIONALIZATIONS FOR THE BURLINGTON

INTERPRETATION .................................................................... 769

1. Statutory Language ....................................................... 770

2. The “Ponderous” Review Process ................................. 772

IV. ABANDON, REPEAL, AND AMEND: RESTORING STABILITY FOR

STUDENTS WITH DISABILITIES ....................................................... 774

V. CONCLUSION ................................................................................ 777

2016] AUTISM, BURLINGTON, AND CHANGE 747

I. INTRODUCTION

The “stay-put provision” of the Individuals with Disabilities Education Act

(“IDEA”)1 is central to the due process protections provided to students with

disabilities.2 Under the IDEA, states must provide students with disabilities a

“free [and] appropriate public education” (“FAPE”).3 Because parents and

school districts4 must collaborate to determine and develop a FAPE for each

individual student, disputes frequently arise.5 To resolve these disputes, the

IDEA provides for administrative and judicial proceedings.6 In the meantime,

however, the student must still receive an education.7 As a result, the stay-put

provision acts as an “automatic preliminary injunction”8 that prevents any

change in the student’s educational placement “until all such proceedings

have been completed.”9 In this way, the stay-put provision: (1) prevents

schools from excluding students with disabilities (as was historically the

case);10 and (2) protects students from being whipsawed between placements

as school districts and parents exhaust due process proceedings.11

Today, the stay-put provision “impacts to some degree virtually every case

involving an administrative challenge under the IDEA.”12 Accordingly, it

continues to be one of the most contentious and litigated aspects of the

IDEA.13 For example, there is currently a circuit split over whether the stay-

1. Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105–17,

§ 615(j), 111 Stat. 37, 93 (codified at 20 U.S.C. § 1415(j) (2012)); see also infra Part II.C

(discussing the stay-put provision).

2. A s disability laws have ev olved, so have the words we use to describe the ind ividuals they

protect. Patrick J. Devlieger, From Handicap to Disability: Language Use and Cultural Meaning in the

United States, 21 DISABILITY & REHABILITATION 346, 347 (1999). This Note will, whenever possible,

use the “people first” language of “persons with disabilities.” See id. at 347–48 (observing that the

now-common phrase “persons with disabilities” emphasizes that “disability is only part of

identity”). Nevertheless, because courts and legislatures regularly used now-outmoded terms like

“handicapped,” the use of such terms is inevitable when discussing the development of disability

law. See id. at 347 (noting that the term is “no longer used” in legislation and official documents).

3. 20 U.S.C. § 1415(b)(1); see also infra Part II.B.1 (discussing the FAPE requirement).

4. For purposes of this Note the terms “school district” and “local educational agency” are

used interchangeably. See 20 U.S.C. § 1415(j) (exclusively using “local educational agency”).

5. See infra Part II.B.2 (discussing the collaborative process of developing an

“individualized education program” to implement a FAPE); see also infra Part II.B (noting that

the requirements of the IDEA provide “ample room” for parents and school districts to disagree).

6. 20 U.S.C. § 1415(e).

7. See infra Part II.B.5 (discussing the due process protections provided by the IDEA); see

also infra Part II.C (discussing how the stay-put provision provides for the student’s education

during dispute resolution).

8. Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1037 (9th Cir. 2009).

9. 20 U.S.C. § 1415(j).

10. See infra Part II.A (discussing how schools historically excluded students with disabilities).

11. See infra Part II.C.1 (discussing the purposes of the provision).

12. Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 82 (3d Cir. 1996).

13. HOWARD FULFROST ET AL., FAGEN FRIEDMAN & FULFROST, LLP, IDEA DUE PROCESS

SURVIVAL GUIDE: A STEP-BY-STEP COMPANION FOR ADMINISTRATORS AND ATTORNEYS 5:1 (2008).