2016] AUTISM, BURLINGTON, AND CHANGE 747
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).