Drinker v. Colonial School District , 78 F.3d 859 ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
3-12-1996
Drinker v. Colonial School District
Precedential or Non-Precedential:
Docket 95-1201
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-1201
DANIEL DRINKER, by his parents and next friends
Ned Drinker and Diane Drinker, and the Parents;
NED DRINKER; DIANE DRINKER, on their own behalf
v.
COLONIAL SCHOOL DISTRICT; STANLEY J. DURTAN,
individually and in his capacity as Superintendent
of Schools; FRED G. SHIPMAN, individually and in his
capacity as Director of Pupil Services; RITA M. GREELEY,
individually and in her capacity as Coordinator of
Special Education; STUART KESSLER, individually and in
his capacity as President of the School Board;
JACK PINHEIRO, individually and in his capacity as
Vice-President of the School Board; LENORA CICCALONE;
RICHARD CONNOLLY; ALLEN MANDELBAUM; ROBERT O'NEILL;
MARC ORLOW; DIANE RAMBO, individually and in their
capacities as Members of the School Board,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 94-07101)
Argued January 29, 1996
BEFORE: GREENBERG, NYGAARD, and LAY,0 Circuit Judges
(Filed: March 12, 1996)
Andrew E. Faust (argued)
Sweet, Stevens, Tucker & Katz
116 East Court Street
Doylestown, PA 18901
0
Honorable Donald P. Lay, Senior Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
1
Attorneys for Appellants
Frank J. Laski (argued)
Barbara E. Ransom
Public Interest Law Center
of Philadelphia
125 South 9th Street, Suite 700
Philadelphia, PA 19107
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This case arises under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-85.
Appellees Ned and Diane Drinker brought the case individually,
and as parents and next friends of their son, Daniel, against the
appellants Colonial School District and certain of its officials,
seeking a preliminary injunction requiring the defendants to keep
Daniel at Gladwyne Elementary School in the Lower Merion School
District.0 As a matter of convenience we will refer to
appellants collectively as "Colonial." The district court had
jurisdiction under the IDEA, 20 U.S.C. § 1415(e)(4)(A), and 28
U.S.C. §§ 1331, 1343. We have jurisdiction over the appeal from
the district court's final order dated February 13, 1995,
granting in part and denying in part the Drinkers' motion for a
preliminary injunction and entering judgment in favor of the
0
Daniel and his parents also sued the Superintendent of the
Colonial School District, the Director of Pupil Services, and the
members of the school board.
2
Drinkers on Count II of their complaint, since the district
court's order terminated the litigation in that court. 28 U.S.C.
§ 1291. We will affirm the district court's order, and remand
the case for the entry of orders in accordance with our opinion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Daniel Drinker,0 a ten-year-old child born with Down's
Syndrome and cerebral palsy, has received special education and
related services since he was an infant. Since the summer of
1992, Daniel's family has resided in the Colonial School
District. Colonial first evaluated Daniel for special education
services that summer and, consistent with that evaluation,
prepared an individual education program (IEP) for Daniel with
the help of his parents on October 21, 1992. At that time,
Colonial placed Daniel in a full-time learning support class at
the Gladwyne Elementary School in the neighboring Lower Merion
School District because Colonial lacked the means to educate
Daniel in its own schools. It cost roughly $25,000 per year to
send Daniel to Gladwyne.
In 1993, Colonial developed a special education program
in its own schools into which it wished to place Daniel.
Accordingly, on July 30, 1993, Colonial issued a Notice of
Recommended Assignment (NORA) to Daniel's parents indicating that
it intended to move Daniel to a full-time learning support class
0
We normally would not publish the name of a child involved in
IDEA proceedings. However, because the district court did so in
its published opinion, we see no utility in our own redaction.
3
at Whitemarsh Elementary, a school within the Colonial District
in September 1993.0 The Drinkers protested the change and
invoked their hearing rights under the IDEA.0 20 U.S.C.
§1415(b)(2). Dr. Carroll Redfern, a Pennsylvania impartial
hearing officer, conducted a hearing on the issue on November 1,
1993. In his decision, Dr. Redfern concluded that Colonial could
change Daniel's placement to Whitemarsh Elementary School, but
0
As noted in Drinkers' brief, Colonial violated Daniel's rights
under the IDEA by unilaterally altering Daniel's NORA. Br. at 14
n.10. The state appeals panel noted as much in its March 17,
1994 opinion:
[T]he district, by unilaterally altering
Daniel's NORA and, by implication, his IEP,
has lost an opportunity to treat Daniel's
change in schools as anything other than a
change in placement. We advise the district
that the hearing officer erred in finding
that no procedural violations occurred. The
district may not alter, unilaterally, an
agreed upon NORA or IEP . . . .
App. at 13. We note the issue here merely as part of our summary
of facts, as it has not been raised for our review.
0
Under the Pennsylvania regulations implementing the IDEA,
parents may request an impartial due process hearing
concerning the identification, evaluation or
educational placement of, or the provision of
a free appropriate public education to, a
student who is exceptional or who is thought
to be exceptional or a young child who is
eligible or who is thought to be eligible, if
the parents disagree with the school
district's identification, evaluation or
placement of, or the provision of a free
appropriate public education to, the student
or young child.
22 Pa. Code § 14.64 (1993); see also 34 C.F.R. §§ 300.504,
300.506 (1995). Under the Pennsylvania regulations, Daniel
qualifies for special education as an "exceptional student." See
22 Pa. Code §§ 14.1, 342.1.
4
not until the beginning of the 1994-1995 school year and not
until it completed a transition plan. Colonial thought the delay
recommended by Dr. Redfern before Daniel's transition to
Whitemarsh was too long and appealed the decision to the state
education agency. The Drinkers did not appeal the decision of
Dr. Redfern.0
On March 17, 1994, a three-judge administrative appeals
panel issued an opinion agreeing with Colonial that Dr. Redfern's
0
There is some dispute as to why the Drinkers did not appeal the
hearing officer's decision that Colonial could proceed with the
placement change in Daniel's program. In their brief, the
Drinkers state that the hearing officer "ordered the parents and
the District to use the spring semester to prepare a transition
plan for Daniel to move into a Colonial School District site in
the fall." Br. at 5 (citing Hearing Officer Decision, App. at
11). Apparently, the suggestion here is that Dr. Redfern did not
specifically order placement at Whitemarsh, but only placement at
a school within the Colonial District:
Despite the characterization of Whitemarsh as
the stay put placement by the second appeals
panel, . . . Dr. Redfern's order never
mentioned Whitemarsh Elementary as an
appropriate placement for Daniel; rather, he
ordered the parents and the District to meet
``for the purpose of preparing a transitional
plan for Daniel to enter CSD [the District]
[in] the fall semester of 1994.'
Id. at 5 n.3 (quoting App. at 11).
The Drinkers further state that they "did not object to
Dr. Redfern's order, because, as they testified, they have never
objected to an appropriate in-district placement." Id. at 5.
Thus, the parents seem to suggest that, had they realized that
the hearing officer's order would require placement specifically
at Whitemarsh Elementary, they would have appealed the order to
the first appeals panel.
For the purposes of this appeal, we need not determine
why the Drinkers did not appeal the placement decision of Dr.
Redfern. Their decision not to appeal, however, has contributed
to a procedurally complex series of IDEA disputes.
5
recommended delay before transition was too long and holding
that: (1) the parties were to develop a transition plan by April
1, 1994; (2) Daniel could remain at Gladwyne through April 22,
1994; and (3) the parties could move Daniel to Whitemarsh on
April 25, 1994, where Colonial would continue to implement his
transition plan.
The parties did not develop Daniel's transition plan in
accordance with the appeals panel's schedule because the Drinkers
refused to cooperate with Colonial.0 On April 25, 1994, Colonial
stopped paying for Daniel's education at Gladwyne. Drinker v.
Colonial Sch. Dist., 888 F. Supp. 674, 676 (E.D. Pa. 1995).0
Nevertheless, Daniel remained at the school. The Drinkers paid
$6,000 to Gladwyne for Daniel's education before exhausting their
resources.0
0
At the district court hearing held on February 3, 1995, Daniel's
father testified that he and his wife refused to discuss Daniel's
transition from Gladwyne to Whitemarsh after the appeals panel's
decision because they believed that Daniel's placement was still
in dispute at that time. Drinker v. Colonial Sch. Dist., 888 F.
Supp. 674, 676 n.6 (E.D. Pa. 1995).
0
Colonial claims that the Drinkers "have materially
misrepresented to the Court that the Colonial School District
discontinued its support for the Gladwyne placement in the Spring
of 1994," while in fact "the District bore the considerable
expense of this placement for the entire 1993-1994 school year."
Reply br. at 2. Because of our decision to affirm the holding of
the district court, this factual dispute is at issue in the case
only in regards to the amount to be reimbursed the Drinkers and
the Lower Merion School District for bearing the costs of
Daniel's education at Gladwyne after Colonial's refusal to pay.
However, we have not been asked, nor do we choose, to address the
factual issue since we remand the case for decision on that
matter.
0
We state these facts as the district court found them, see
Drinker v. Colonial Sch. Dist., 888 F. Supp. at 676, since we
have not been asked to review that court's findings of fact in
this regard. On remand, the district court will need to
6
In June 1994, the parties finally met to discuss
Daniel's program. The parents again refused to discuss the
development of a transition plan and, on August 1, 1994,
requested another due process hearing. Dr. Carole Welch
conducted that hearing in October 1994, at which Daniel's parents
sought to raise the issue of Daniel's placement.
On October 30, 1994, Dr. Welch issued an opinion and
order that contained two holdings. First, Dr. Welch found that
the issue of Daniel's placement was barred by principles of res
judicata because Daniel's parents had not sought judicial review
of the March 1994 appeals panel's decision. Second, because the
parties could not develop a transition plan, Dr. Welch created a
plan intended to effect the complete transition of Daniel into
the Whitemarsh Elementary program by December 1994. The Drinkers
appealed Dr. Welch's opinion and order to an administrative
appeals panel on November 21, 1994, and, two days later, filed
this action. On December 28, 1994, the appeals panel affirmed
Dr. Welch's decision in full.0
The Drinkers first appeared before the district court
on December 2, 1994, seeking a preliminary injunction providing
that Daniel could remain at Gladwyne at Colonial's expense. At
determine the exact amount to be reimbursed the Drinkers for the
cost of Daniel's education at Gladwyne.
0
Pennsylvania law requires an appeals panel to issue a decision
within 30 days. 22 Pa. Code § 14.64(o)(3). In this case, the
appeals panel issued its decision 37 days after the parents'
request for review. The district court concluded that the seven-
day delay appeared to have been harmless and regarded the delay
as inconsequential. Drinker v. Colonial Sch. Dist., 888 F. Supp.
at 767 n.9. The issue has not been raised for review in this
court.
7
that time, however, the administrative process was incomplete:
Dr. Welch had issued her decision as an impartial hearing
officer, but the appeal before the three-judge panel still was
pending. Thus, with the parties' consent, the district court
continued the hearing until after the second appeals panel had
issued its decision. After the panel issued the decision, the
district court held a full hearing on February 3, 1995.
On February 3, 1995, the parties agreed to consolidate
the hearing on the preliminary injunction with a trial on the
merits, pursuant to Fed. R. Civ. P. 65(a)(2). Following the
resulting hearing, the district court issued a decision and order
dated February 13, 1995, affirming in their entirety the
substantive findings and conclusions of Dr. Welch and the second
appeals panel. The court agreed with the hearing officer and
appeals panel that the issue of whether Colonial could change
Daniel's placement from Gladwyne to Whitemarsh had been litigated
before Dr. Redfern and thus could not be relitigated before Dr.
Welch and the second appeals panel. Drinker v. Colonial Sch.
Dist., 888 F. Supp. at 680. The court's reasoning in support of
this conclusion differed from that of Dr. Welch and the second
appeals panel, however. Rather than relying on the Drinkers'
failure to appeal the decision of the first appeals panel to the
district court to conclude that litigation of the placement issue
was barred by res judicata, as had Dr. Welch and the second
appeals panel, the district court found that the Drinkers were
barred from litigating the issue further by their failure to
8
raise the issue beyond the hearing officer in the first
proceeding. Id.
Further, the district court concluded that the "stay
put" provision in section 1415(e)(3) of the IDEA required
Colonial to maintain and support Daniel's continued placement at
Gladwyne pending the outcome of the second due process hearing
and the subsequent appeals to the administrative appeals panel
and the district court. Thus, the court ordered Colonial to pay
Daniel's expenses at Gladwyne through the date of its order.
Finally, the court denied the Drinkers' claim under 42 U.S.C.
§1983, finding that, standing alone, Colonial's violation of 20
U.S.C. § 1415(e)(3)'s stay put requirement did not rise to the
level of a section 1983 claim, nor had the Drinkers carried their
burden in proving that Colonial violated their constitutional
rights. Drinker v. Colonial Sch. Dist., 888 F. Supp. at 681
n.14. Colonial appeals only the district court's ruling
concerning section 1415(e)(3) of the IDEA. The Drinkers have not
filed a cross-appeal.
II. DISCUSSION
A. Section 1415(e)(3) of the IDEA
The IDEA, 20 U.S.C. §§ 1400-85, gives parents the right
to an impartial due process hearing on complaints regarding the
educational placement of their handicapped children, id.
§1415(b)(2), and to state or federal judicial review of final
9
administrative decisions, id. § 1415(e)(2).0 During these
administrative and judicial proceedings, section 1415(e)(3) of
the Act, known as the "stay put" rule, W.B. v. Matula, 67 F.3d
484, 500 (3d Cir. 1995), applies:
During the pendency of any proceedings
conducted pursuant to this section, unless
the State or local educational agency and the
parents or guardian otherwise agree, the
child shall remain in the then current
educational placement of such child, or, if
applying for initial admission to a public
school, shall, with the consent of the
parents or guardian, be placed in the public
school program until all such proceedings
have been completed.
0
Section 1415(e)(2) of the IDEA provides in relevant part:
Any party aggrieved by the findings and
decision made under subsection . . . shall
have the right to bring a civil action with
respect to the complaint presented pursuant
to this section, which action may be brought
in any State court of competent jurisdiction
or in a district court of the United States
without regard to the amount in controversy.
In any action brought under this paragraph
the court shall receive the records of the
administrative proceedings, shall hear
additional evidence at the request of a
party, and, basing its decision on the
preponderance of the evidence, shall grant
such relief as the court determines is
appropriate.
20 U.S.C. § 1415(e)(2).
Pennsylvania has adopted a "two-tier" special education
administrative hearing system that consists of an evidentiary
hearing at the "local" level before a single impartial hearing
officer and then an independent review at the "state" level
before a panel of three impartial appellate officers. See 22 Pa.
Code § 14.64(m). This system conforms with the requirements of
sections 1415(b)(2) and (c) of the IDEA. See 20 U.S.C.
§§1415(b)(2), (c).
10
20 U.S.C. § 1415(e)(3); see also 34 C.F.R. § 300.513(a).0
The Supreme Court has described the language of section
1415(e)(3) as "unequivocal," in that it states plainly that "``the
child shall remain in the then current educational placement.'"
Honig v. Doe, 484 U.S. 305, 323, 108 S. Ct. 592, 604 (1988). In
describing the section's purpose, the Court noted that it seems
clear that "Congress very much meant to strip schools of the
unilateral authority they had traditionally employed to exclude
disabled students, particularly emotionally disturbed students,
from school." Id. at 323, 108 S.Ct. at 604; see also School
Comm. v. Department of Educ., 471 U.S. 359, 373, 105 S. Ct. 1996,
2004 (1985) ("We think at least one purpose of § 1415(e)(3) was
to prevent school officials from removing a child from the
0
The educational agency and contesting parents may agree to a
change in placement under section 1415(e)(3). Federal
regulations under the statute thus provide as follows:
During the pendency of any administrative or
judicial proceeding regarding a complaint,
unless the public agency and the parents of
the child agree otherwise, the child involved
in the complaint must remain in his or her
present educational placement.
34 C.F.R. § 300.513. The due process requirements of the
Pennsylvania regulations implementing the IDEA track this federal
standard:
No change in the identification, evaluation,
educational placement or IEP of an
exceptional student or an eligible young
child may be made during the pendency of an
administrative or judicial proceeding unless
agreed to by the parties to the proceeding.
22 Pa. Code § 14.61(b).
11
regular public school classroom over the parents' objection
pending completion of the review proceedings.").
Section 1415(e)(3) of the IDEA functions, in essence,
as an automatic preliminary injunction. Zvi D. v. Ambach, 694
F.2d 904, 906 (2d Cir. 1982). As the Court of Appeals for the
Second Circuit has stated, "[t]he statute substitutes an absolute
rule in favor of the status quo for the court's discretionary
consideration of the factors of irreparable harm and either a
likelihood of success on the merits or a fair ground for
litigation and a balance of hardships." Id. (citations omitted);
see also Woods v. New Jersey Dep't of Educ., No. 93-5123, 20
Indiv. Disabilities Educ. L. Rep. (LRP Publications) 439, 440 (3d
Cir. Sept. 17, 1993).0 As we have stated:
The provision represents Congress' policy
choice that all handicapped children,
regardless of whether their case is
meritorious or not, are to remain in their
current educational placement until the
dispute with regard to their placement is
ultimately resolved. Once a court ascertains
the student's current educational placement,
the movants are entitled to an order without
satisfaction of the usual prerequisites to
injunctive relief.
Woods, 20 Indiv. Disabilities Educ. L. Rep. (LRP Publications) at
440. The relevant inquiry under section 1415(e)(3) thus becomes
the identification of "the then current educational placement,"0
0
As appellants correctly note, our decision in Woods is
unpublished, and thus is not regarded as binding authority. See
Internal Operating Procedure 5.8 (1994). However, because of the
case's factual similarity to that before us, we look to the
decision as a paradigm of the legal analysis we should here
follow.
0
Neither the statute nor the legislative history provides
guidance for a reviewing court on how to identify "the then
12
of the handicapped student and, further, the identification of
who should pay for it. See Woods, 20 Indiv. Disabilities Educ.
L. Rep. (LRP Publications) at 440; Zvi D., 694 F.2d at 906. As
the Court of Appeals for the Second Circuit explained in Zvi D.:
[I]mplicit in the maintenance of the status
quo is the requirement that a school district
continue to finance an educational placement
made by the agency and consented to by the
parent before the parent requested a due
process hearing. To cut off public funds
would amount to a unilateral change in
placement, prohibited by the Act.
Id. at 906 (citing Monahan v. Nebraska, 491 F. Supp. 1074, 1089
(D. Neb. 1980), aff'd in part, vacated in part on other grounds,
645 F.2d 592, 597-98 (8th Cir. 1981)).
In addressing Colonial's appeal, then, we must decide
if Gladwyne indeed qualified as Daniel's "then current
educational placement" during the pendency of the parents' second
round of hearing officer and appeals panel review and until the
time that the district court ruled.0 Our review of this legal
issue is plenary. See Woods, 20 Indiv. Disabilities Educ. L.
Rep. (LRP Publications) at 440; Leonard v. McKenzie, 869 F.2d
1558, 1564 (D.C. Cir. 1989).
B. "During the pendency of any proceeding . . . ."
Colonial's argument is several-fold. First, Colonial
interprets Pennsylvania's two-tier system of administrative
current educational placement." Zvi D. v. Ambach, 694 F.2d at
906 n.5; see also Thomas v. Cincinnati Bd. of Educ., 918 F.2d
618, 625 (6th Cir. 1990).
0
The Drinkers have not asserted that the "stay put" provision
extended beyond that date.
13
review as providing for "finality" of decision at the "local"
level of impartial hearing officer review to the extent that such
a decision is not appealed to the state level. See br. at 10-11
(citing 20 U.S.C. § 1415(c) and (e)(1); 34 C.F.R. § 300.509).
Decisions made at the state level, according to the school
district, are final to the extent that they are not appealed for
judicial review. Id. at 11 (citing 20 U.S.C. § 1415(e)(1); 34
C.F.R. § 300.510(d)).
Colonial next quotes from our decision in Woods, as
follows:
[T]he purpose of the ``stay put' is to
preserve the status quo of the child's
functioning placement and program until the
underlying IDEA litigation is resolved,
unless there is an effective waiver of the
protection of the ``stay put' (emphasis
added).
Br. at 11 (citing Woods, 20 Indiv. Disabilities Educ. L. Rep.
(LRP Publications) at 440). Colonial then seeks to apply this
statement from Woods to the situation of Daniel Drinker,
concluding that:
In the present case, the ``underlying IDEA
litigation' concerning the central issue of
whether Daniel should be placed at Whitemarsh
Elementary or remain at Gladwyne Elementary
was unquestionably ``resolved' when the
parents failed to challenge Dr. Redfern's
ruling on that issue before the first appeals
panel. On this point both the second appeals
panel and the [district] court completely
agree, and their independent conclusions are
not in question before this Court on appeal.
. . . [T]he decision to place Daniel at
Whitemarsh Elementary School by the beginning
of the 1994-1995 school year was resolved
beyond the point of either collateral attack
in further administrative proceedings or
direct attack in judicial appeal.
14
Br. at 11-12. Thus, Colonial essentially argues that because Dr.
Redfern decided that it could change Daniel's educational
placement from Gladwyne to Whitemarsh, which decision the
Drinkers did not appeal to the state administrative panel, Dr.
Redfern's decision became a final resolution of the "underlying
IDEA litigation," rendering section 1415(e)(3)'s stay put
requirement to keep Daniel at Gladwyne satisfied as of April 25,
1994.
In making this argument, Colonial relies on the
elements of the district court's decision holding that the
Drinkers were barred from litigating the placement issue once
they failed to appeal Dr. Redfern's decision to the state
administrative panel. Specifically, Colonial cites the district
court's conclusion that the issue of Daniel's placement, which
they claim to be the crux of the "underlying IDEA litigation,"
was "resolved beyond the point of either collateral attack in
further administrative proceedings or direct attack in judicial
appeal" because the issue was not appealed to the first state
appeals panel. Br. at 12. Therefore, Colonial argues that since
the "underlying IDEA litigation" was thus settled, section
1415(e)(3)'s mandate to maintain the "then current educational
placement" of Daniel at Gladwyne Elementary was settled at the
point of the first appeals panel's decision.
We will assume without deciding that the district court
properly concluded that the underlying placement dispute was
resolved when the Drinkers did not appeal Dr. Redfern's decision.
Nevertheless, Colonial's conclusion that the court's application
15
of the stay put provision of section 1415(e)(3) was inappropriate
does not follow. Colonial makes the conceptual mistake of
separately cabining the issues of placement and transition,
concepts that cannot be so radically separated.0 While it is
true that the Drinkers acquiesced in Dr. Redfern's placement
decision, that decision included, as part and parcel of the plan,
a nearly-one-year transition program for Daniel. In contrast,
the appeals decision of March 1994 aimed to place Daniel at
Whitemarsh by April 24, 1994, with barely a three-week transition
period. Transition periods and timing of placement are integral
elements of any educational program, elements that were not
settled by any stretch of the imagination even were we to address
Colonial's claim that the bare fact of placement at Whitemarsh
had been decided as of March 17, 1994. Thus, Dr. Redfern's
placement decision, though settling the issue of where Daniel
ultimately would be placed, had not settled the timing and
transition issues, since those elements were contested hotly
through the time of the February 13, 1995 decision of the
0
Appellees stated the situation well in their brief:
By defining the underlying litigation as only
the placement issue, i.e. Gladwyne or
Whitemarsh, Appellants ignore the important
issues the parents consistently contested
that were integrally related to the
appropriate educational placement of Daniel.
Those issues included the nature and length
of transition (which Appellants resisted), an
appropriate IEP (which appellants resisted),
and payment for the appropriate program
(Gladwyne).
Br. at 12 (footnote omitted).
16
district court. Consequently, Colonial's claim that section
1415(e)(3)'s mandate to maintain the Gladwyne placement could not
apply past the first appeals panel's decision is not an accurate
statement of the section's application.
Colonial's reliance on Letter to Spindler, OSEP Policy
Letter, Apr. 21, 1992, reprinted in 18 Indiv. Disabilities Educ.
L. Rep. (LRP Publications) 1038, 1039 (1992), does not change our
conclusion. Colonial contends that this letter from the Office
of Special Education Programs of the U.S. Department of Education
to an educator in Montana plainly holds that "the pendent
placement in which a student must ``stay put' is the one upheld by
a final, unappealed order, regardless of whether continued
program disputes and due process hearings concerning that
placement are likely." Br. at 13. However, the facts at issue
in Letter to Spindler concerned an unappealed district court
order regarding educational placement. The letter simply states
that, for stay put purposes, an unappealed district court order
is a final order. In contrast, here Colonial's claimed "final"
order was that of an impartial hearing officer, unexamined by
either state administrative or judicial review, and the program
disputes at issue were not the mechanics of an IEP, as in Letter
to Spindler, but the all-important issues of timing and
transition to a new educational placement -- the issues at the
core of section 1415(e)(3)'s concerns. Thus, we find Letter to
Spindler unpersuasive in regards to our holding that the
"underlying IDEA litigation" concerning Daniel Drinker's
education was not resolved at the time of the first appeals
17
panel's decision. Woods, 20 Indiv. Disabilities Educ. L. Rep.
(LRP Publications) at 440. Because the litigation was not
resolved, section 1415(e)(3)'s requirement that "during the
pendency of any proceedings . . . the child shall remain in the
then current educational placement" applied to the case of Daniel
Drinker beyond the first appeals panel decision.
C. Daniel Drinker's "then current educational placement"
As the Drinkers note, there is no question that
Gladwyne was the current placement of Daniel Drinker at the time
Colonial issued the NORA to them in July 1993. Br. at 11. The
IEP team, consistent with the requirements of the IDEA, 42 U.S.C.
§ 1414(a)(5), and Pennsylvania Regulations, 22 Pa. Code
§§14.42(b), (c), and 14.32, had determined the appropriate
placement and location of services for Daniel to be Gladwyne
Elementary in October 1992. In the fall of 1993, there was no
other valid IEP in place. Thus, there was no other current
educational placement at that time. As the Court of Appeals for
the 6th Circuit has stated:
Because the term connotes preservation of the
status quo, it refers to the operative
placement actually functioning at the time
the dispute first arises. If an IEP has been
implemented, then that program's placement
will be the one subject to the stayput
provision. And where . . . the dispute
arises before any IEP has been implemented,
the ``current educational placement' will be
the operative placement under which the child
is actually receiving instruction at the time
the dispute arises.
18
Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir.
1990).
The standard in our cases has been the same. As we
noted in Woods, "the dispositive factor in deciding a child's
``current educational placement' should be the Individualized
Education Program ("IEP") . . . actually functioning when the
``stay put' is invoked." Id., 20 Indiv. Disabilities Educ. L.
Rep. (LRP Publications) at 440.
As the operative placement actually functioning at the
time the dispute between the Drinkers and Colonial arose (the IEP
actually functioning when the stay put provision of the IDEA was
invoked) was Daniel's placement at Gladwyne Elementary, the
district court was correct in its decision that Colonial must
bear the burden of paying for the costs of Daniel's education at
Gladwyne through the date of the district court's final order.
See School Comm. v. Department of Educ., 471 U.S. at 372-74, 105
S.Ct. at 2004-05.
D. Waiver
Colonial's second line of attack on the district
court's holding is that the Gladwyne Elementary School could not
have remained Daniel's "then current educational placement"
because of the effective waiver of the protection of the "stay
put" provision by Daniel's parents. Colonial claims that:
Dr. Welch, the second appeals panel, and the
District Court below appear to be united in
their conclusion that the failure of the
parents to appeal Dr. Redfern's order to the
first appeals panel effectively and
19
conclusively resolved the underlying
placement dispute in favor of Colonial's
Whitemarsh Elementary proposal. The District
Court also concluded, in an analysis that
specifically addressed its ability to
consider the placement issue as if on direct
appeal from the first panel's decision, that
the parents had effectively waived the right
to litigate further the appropriateness of
the placement at Whitemarsh by failing to
present the issue to the first panel.
Br. at 15.
However, even were we to accept the argument that the
Drinkers were estopped from raising the placement issue for
either administrative or judicial review once they failed to
bring the matter to the attention of the first appeals panel,
section 1415(e)(3)'s stay put mandate would apply to Daniel's
situation because the transition elements of his program still
were being contested hotly by the parties through the time of the
district court's review. As the Drinkers note in their brief,
[a]dministrative decisions . . . that may be
interpreted as inconsistent with the lower
court's finding that Gladwyne was Daniel
Drinker's current placement ``cannot
metamorphize [sic] the procedural record or
alter facts' that the Drinkers were
continuing to resist Colonial's vigorous
efforts to move Daniel as quickly as possible
from Gladwyne and impose the costs of
continued placement at Gladwyne on the
Drinkers.
Br. at 13 (citing Woods, 20 Indiv. Disabilities Educ. L. Rep.
(LRP Publications) at 440).
Moreover, to the extent that appellants argue that the
Drinkers "effectively" waived the protection of the stay put
provision, the Drinkers are correct in noting that nothing in
Woods or any other case that we have found interprets the stay
20
put provision as suggesting that parents can lose their stay put
protection except by affirmative agreement to give it up. See
Br. at 13 (citing Woods, 20 Indiv. Disabilities Educ. L. Rep.
(LRP Publications) at 440.) In any event, even assuming that in
a proper case the stay put provision can be waived, we find
nothing in the record here that leads us to believe that this is
such a case. Consequently, inasmuch as there was no explicit
agreement by the Drinkers and Colonial that Gladwyne would not be
Daniel's "current educational placement" for purposes of the stay
put provision, the Drinkers did not waive that protection. See
20 U.S.C. § 1415(e)(3); 34 C.F.R. § 300.513; 22 Pa. Code
§14.61(b).
III. CONCLUSION
For all the reasons detailed above, we will affirm the
district court's order of February 13, 1995, granting the
Drinkers' motion for a preliminary injunction in part and
entering judgment in favor of the Drinkers on Count II of their
complaint. Accordingly, we will remand the case to the district
court for the entry of orders requiring Colonial to reimburse all
costs billed to the Drinkers for Daniel's education at Gladwyne
and to pay all further costs owed to the Lower Merion school
district for Daniel's education through February 13, 1995, the
date of the district court's final order.0 In accordance with
0
The Court of Appeals for the District of Columbia Circuit held
in Andersen v. District of Columbia, 877 F.2d 1018, 1023 (D.C.
Cir. 1989), that maintenance of a child's "then current
educational placement" under section 1415(e)(3) is required only
21
the district court's order of September 20, 1995, the Drinkers
are entitled to renew their motion for attorneys' fees to that
court within 14 days of the issuance of our judgment. Thus, we
need not address that issue here.
through the level of district court review. That is, maintenance
of the placement is not required during the process of appeal to
the courts of appeal or the Supreme Court. Id. To our
knowledge, that court is the only court of appeals to have
addressed this issue. Without deciding the matter, we affirm the
district court's decision to require Colonial to "bear the burden
of paying for the costs of Daniel's education at Gladwyne through
[the district court's] review." Drinker v. Colonial Sch. Dist.,
888 F. Supp. at 681.
22