Can School Districts Carve Out a Placement from the IDEA’s Stay-Put Provision?

By David Greco

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Originally Published in Disabled World

Synopsis and Key Points:

• Arguably a stay put carve out is not enforceable because it violates the IDEA’s public policy of protecting the continuity of disabled students’ education.
• A number of school districts in California have begun adding to students’ IEPs language that carves a student’s placement out of stay put.
• Stay put’s goal is to prevent the “irreparable harm inherent in the premature removal of a disabled child to a potentially inappropriate educational setting.”

Main Digest

School districts have increasingly taken to including, in students’ Individualized Education Programs (IEPs), statements that a particular placement isn’t subject to the IDEA’s stay-put provision. One problem: It’s Illegal.

Background on the Individuals with Disabilities Education Act’s (“IDEA”) Stay Put Provision

Students with certain disabilities qualify for “special education” under the IDEA (Individuals with Disabilities Education Act). 34 C.F.R. § 300.8(a). “Special education” means “specially designed instruction . . . to meet the unique needs of a child with a disability . . . .” 34 C.F.R. § 300.39.

Educational agencies must provide this special education to qualifying students, to meet their obligation to provide all students a Free Appropriate Public Education. 20 U.S.C. § 1401(9); 34 C.F.R. §§ 300.17, 300.101, 300.112. The IDEA imposes procedural and substantive requirements to ensure the student receives instruction that meets his or her needs. One of those requirements is the creation of an Individualized Education Plan (“IEP”). The IEP is a written statement outlining the services that the educational agency must provide and the student’s educational placement. 20 U.S.C. § 1401(14); 34 C.F.R. §§ 300.22, 300.320(a).If a parent does not feel an IEP meets the student’s needs, the parent may file for a due process hearing, where an administrative officer determines the services and placement to which the student is entitled. 20 U.S.C. § 1415(i)(2); 34 C.F.R. §§ 300.503, 300.507.

During such a dispute, the child must remain in their “then-current educational placement.” 20 U.S.C. § 1415(j). “Current educational placement” means the placement designated in the student’s IEP. To ensure a child remains placed, a parent may file a request for a stay put order with the administrative officer presiding over the due process dispute.

Stay put’s goal is to prevent the “irreparable harm inherent in the premature removal of a disabled child to a potentially inappropriate educational setting.” Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1039-40 (9th Cir. 2009).

School Districts have Been Attempting to Carve Placements out of stay put – with Disastrous Results

A number of school districts in California have begun adding to students’ IEPs language that carves a student’s placement out of stay put. For example, a district might include a phrase like, “School District does not offer XYZ School for stay put purposes.”

The results of these clauses are catastrophic to a student who files a due process request. Further, they can leave students with an impossible choice: challenge an IEP, request stay put, and be without education; or forego challenging an IEP and accept whatever services the district offers.

In one case that reached the Ninth Circuit Court of Appeals, the school district included this language in the student’s IEP. When the student filed a request for stay put, the administrative law judge denied the request based on the carve-out. The administrative law judge further refused to identify where the student should be placed while the student’s administrative hearing proceeded. This meant the student had no placement at all. The school district took the position that it was not obligated to identify or provide a placement to the student until the due process hearing ended. In other words, the school district was content to let the student be completely without schooling until the end of the due process case.

The Ninth Circuit disagreed with the school district and ruled that it was required to keep the student at the same school where she attended before the due process hearing was requested. However, the court did not rule on whether the carve out provision was void as a matter of law. See C.Q. v. River Springs Charter Schools, 771 Fed. Appx. 778 (9th Cir. 2019) (memorandum opinion).

Stay Put Carve Outs Are Likely Illegal

Federal law – like California law – recognizes that contracts cannot be enforced if they violate public policy. E.g., Harris v. Runnels, 53 U.S. 79, 82 (1851); Cecil B. De Mille Productions v. Woolery, 61 F.2d 45 (9th Cir. 1932); Cal. Civ. Code § 1668. While the IDEA does not consider IEPs to be contracts in the traditional sense, this principle should nevertheless shine through if the courts are intent on further the IDEA’s goal.

The IDEA’s goal is to “ensure” that all eligible children with disabilities receive a Free Appropriate Public Education. 20 U.S.C. § 1412(a)(1). That is a “demanding” standard: students with disabilities must receive an “appropriately ambitious” educational program that gives them “the chance to meet challenging objectives.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017). And, as discussed above, the stay put provision serves the important purpose of preventing severe disruption to a disabled student’s education.

Arguably, then, a stay put carve out is not enforceable because it violates the IDEA’s public policy of protecting the continuity of disabled students’ education. And though no appeals court has ruled on this specific question, at least one Federal District Court has held that an IEP is void if it requires a family to waive the IDEA’s protections. See Y.G. v. Riverside Unified Sch. Dist., 774 F. Supp. 2d 1055 (C.D. Cal. 2011).

What Families Can Do to Protect Their Children’s Rights

The first thing that parents of a disabled student must do is, when negotiating a new IEP, never agree to one that contains a carve-out. Parental consent is required to execute an IEP–a school district cannot implement without it. 20 U.S.C. § 1414(a)(1)(D)(i).

Second, if a child’s IEP already contains a carve out, and the student needs to file for due process, the parent or their lawyer must point out to an administrative law judge that the carve out is unenforceable under the law. Families should retain an attorney with expertise on this issue.