E.E., a student with autism, began kindergarten in the Norris School District in Bakersfield in August 2018. The District implemented E.E.’s original Individualized Education Plan (IEP) beginning in November 2018.
In January 2020, E.E.’s parents filed a due process hearing request with the Office of Administrative Hearings (OAH) seeking to modify E.E.’s IEP. Subsequently, the District offered a new IEP, but the parents did not agree to the proposed IEP. The District then filed its own due process hearing request in June 2020, and OAH consolidated the two cases for a hearing in July 2020.
The Administrative Law Judge (ALJ) issued a ruling in September 2020 and found in favor of E.E’s parents in part and the District in part. Specifically, the ALJ found that the District denied E.E. a Free Appropriate Public Education (FAPE) because it failed to implement the 2018 IEP. The ALJ ordered that the 2020 IEP constituted E.E.’s “stay put” placement under the Individuals with Disabilities Education Act (IDEA), which meant that the District was required to implement the 2020 IEP until E.E.’s parents consented to a new amendment or annual IEP or as otherwise ordered by OAH or another court.
In preparation for the 2020-2021 school year, the District made plans to implement the 2020 IEP consistent with the ALJ’s ruling. E.E.’s parents filed a federal lawsuit challenging parts of the ALJ’s ruling and requested the trial court prevent the District from implementing the 2020 IEP pending the litigation.
The trial court granted E.E.’s parents’ request to prevent the District from implementing the 2020 IEP. The trial court concluded the ALJ’s ruling was wrong as a matter of law, and that proper stay put placement was the placement from the 2018 IEP. Accordingly, the trial court ordered that the District must implement the 2018 IEP pending the litigation because it was the “stay put” placement. The District appealed.
The IDEAs stay put provision reads:
[D]uring 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, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.
(20 U.S.C. § 1415(j) (emphasis added).)
The Court of Appeals stated that the reading most consistent with the ordinary meaning of the phrase suggests that the “then-current educational placement” refers to the educational setting in which the student is actually enrolled at the time parents request a due process hearing to challenge a proposed change in the child’s educational placement. Specifically, “current educational placement” meant “the placement set forth in the child’s last implemented IEP.”
Here, E.E.’s parents and District agreed that the 2018 IEP was the last IEP in effect for E.E., and in particular, the 2018 IEP was in effect at the time the parents requested a due process hearing in January 2020. Therefore, the 2018 IEP constituted E.E.’s “then-current educational placement” under the plain language of IDEA. Absent parental agreement for a modification, E.E.’s 2018 IEP remained his current educational placement and the default stay-put placement. The ALJ lacked the legal authority to effectively reinterpret the word “current” in the statute to “future” and order the District to implement the 2020 IEP instead.
In rebuttal, the District argued that the Court of Appeals should create an exception to IDEA’s stay-put provision. Specifically, the District argued that when a student challenged the then-current placement as a failure to offer FAPE, the student was not entitled to invoke stay put to force the District to continue implementing that IEP. However, the District did not offer any cases to support this argument, and the Court of Appeals found the language of IDEA directly conflicts with the argument. IDEA does not make the stay-put provision contingent on any challenges to a current placement. The Court of Appeals declined to create the new exception because it would add a provision that Congress did not include in the statute.
Ultimately, the Court of Appeal supported the trial court’s ruling in favor of E.E.’s parents, and the parties will continue to litigate the remaining disputes in the trial court.
E. E. v. Norris School District (9th Cir. 2021) 4 F.4th 866.
