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
SUMMARY

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-p... (see full summary)

 
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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Although the Burlington dictum was not binding precedent and is easily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 PROVISIONS AGREEMENT EXCEPTION ............... 761
B. SCHOOL COMMITTEE OF BURLINGTON V. DEPARTMENT OF
EDUCATION ........................................................................... 763
C. BURLINGTONS 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. INSTABILITYS 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).

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