AW v. Fairfax County School Board

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AW,1 by his parents, Debra D. 
Wilson and Christopher D. Wilson,
Plaintiff-Appellant,
v.  No. 03-1181
FAIRFAX COUNTY SCHOOL BOARD,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-02-1215-A)
Argued: January 22, 2004
Decided: June 24, 2004
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Judge Motz and Judge King joined.
COUNSEL
ARGUED: Hunter Craycroft Harrison, Jr., McLean, Virginia, for
Appellant. John Francis Cafferky, BLANKINGSHIP & KEITH, Fair-
1
The court has revised the caption of this appeal in order to protect the
identity of the minor student on whose behalf the underlying action was
filed.
2 AW v. FAIRFAX COUNTY SCHOOL BOARD
fax, Virginia, for Appellee. ON BRIEF: Jennifer L. Redmond,
BLANKINGSHIP & KEITH, Fairfax, Virginia; Thomas J. Cawley,
HUNTON & WILLIAMS, McLean, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
AW, a disabled student in Fairfax County, Virginia, appeals the
district court’s judgment in favor of the Fairfax County School Board
("FCSB") in his suit under the Individuals with Disabilities Education
Act, 20 U.S.C. §§ 1400-1487 (West 2000 & Supp. 2003) ("the
IDEA"). In his complaint, AW asserted that the FCSB improperly
refused to allow him to enroll at his preferred junior high school after
a pattern of misbehavior in the preceding school year resulted in his
mid-year transfer to an elementary school that sent its students on to
a different junior high school. Specifically, AW alleged that the
FCSB’s transfer decision violated the procedural and substantive pro-
tections afforded him under the IDEA, including its "stay-put" provi-
sion requiring that the student’s "educational placement" not change
while disciplinary proceedings are pending. Because we conclude that
the term "educational placement" as used in the stay-put provision
refers to the overall educational environment rather than the precise
location in which the disabled student is educated, we affirm.
I.
In March 2002, AW was a sixth-grade student assigned to the
"gifted and talented" program (the "GT program") at his elementary
school. During the prior school year, a committee at AW’s school
concluded that AW was eligible to receive special education assis-
tance under the IDEA as a student with an emotional disability. That
determination resulted in the formulation of an Individualized Educa-
tional Program ("IEP") for AW that devoted one hour of each school
week to specialized education intended to alleviate AW’s "difficulty
maintaining focus and completing academic tasks as required" and
avoidance of "many tasks, especially when they involve writing." J.A.
135. AW successfully completed the remainder of his fifth-grade
AW v. FAIRFAX COUNTY SCHOOL BOARD 3
year, and his IEP was revised the following year in accordance with
IDEA procedure.
As a sixth-grader, AW began exhibiting behavior problems he had
not displayed during the first year of his IDEA program. These disci-
plinary issues culminated in a March 2002 incident in which AW per-
suaded another student to place a threatening note in the computer file
of a student that AW disliked.2 In the ensuing inquiry, AW admitted
that his intent was to scare the targeted student away from school.
Based on his admission and past behavioral problems, school admin-
istrators suspended AW from school for two school weeks and initi-
ated proceedings to expel AW.
As required by the IDEA, school officials convened a Manifesta-
tion Determination Review ("MDR") committee in order to determine
the extent to which AW could be disciplined. Under the IDEA, a dis-
abled student may not be disciplined by his school unless an MDR
committee concludes that the student’s IEP was appropriate relative
to his qualifying disability and that the student’s disability did not
inhibit his capacity either to appreciate that his behavior was inappro-
priate or to conform his behavior to expectations. See 20 U.S.C.
§ 1415(k)(4) (2000). On the ninth day of AW’s suspension, the MDR
committee concluded that AW’s IEP appropriately compensated for
his emotional disability and that AW’s disability did not prevent him
from either understanding that his actions violated school rules or
behaving appropriately. This finding opened the door for the FCSB
to discipline AW as it would any other student. See 20 U.S.C.
§ 1415(k)(5) (2000). The following day, however, a FCSB adminis-
trator rejected the expulsion recommendation from the administrators
of AW’s school and directed instead that AW be transferred to the GT
program at another FCSB elementary school for the remainder of the
school year. It is undisputed that AW would continue to receive the
one hour per week of special education at this new location.
Despite the transfer determination, AW returned to his original
school at the conclusion of his suspension to complete the final week
of school before spring break. During this week, AW continued to
2
That message, which appeared anonymously in the targeted student’s
account, read "DEATH AWAITS YOU."
4 AW v. FAIRFAX COUNTY SCHOOL BOARD
receive GT program course work but was separated from his class and
assigned instead to an empty classroom. As the week drew to a close,
AW’s parents invoked their right under the due process procedures of
the IDEA to a review of the MDR determination. The appointed due
process review officer ("DPR Officer") issued a pre-hearing decision
staying the FCSB administrator’s transfer decision, and AW returned
to his original school following spring break.
At the April 17, 2002 hearing regarding the MDR committee’s
findings, AW’s psychologist testified that AW had Attention Deficit
Hyperactivity Disorder ("ADHD") and Oppositional Defiance Disor-
der ("ODD"). AW’s psychologist opined that AW’s IEP failed to ade-
quately compensate for ODD and that AW’s combination of
conditions figured prominently in the behavior for which he was dis-
ciplined. Nevertheless, the DPR Officer concluded that the MDR
committee’s conclusion was sound and that the FCSB could transfer
AW to a nearby school with a comparable GT program, based in part
on his conclusion that the evidence did not support the findings of
AW’s psychologist. The DPR Officer’s order released the FCSB to
transfer AW to another elementary school located approximately five
miles away from AW’s original school, and AW completed his sixth-
grade year at that school.
Following their unsuccessful attempts to enroll AW at the junior
high he would likely have attended but for his transfer, AW’s parents
filed the complaint in this case on AW’s behalf on August 16, 2002.
The complaint alleged that the FCSB violated the IDEA’s "stay-put"
provision by transferring AW despite the ongoing challenge to the
MDR committee’s determination under the IDEA’s review proce-
dures, and that the MDR committee erred in concluding that AW
could be disciplined as any other student. The district court granted
judgment in favor of the FCSB, and AW timely appealed.
II.
This Court reviews the district court’s interpretation of the IDEA
de novo. Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003).
When a district court reviews a state administrative decision under the
IDEA, that court must make an "independent decision based on a pre-
ponderance of the evidence." Doyle v. Arlington County Sch. Bd., 953
AW v. FAIRFAX COUNTY SCHOOL BOARD 5
F.2d 100, 103 (4th Cir. 1991). In doing so, however, the court must
accord the administrative findings "due weight," as "the primary
responsibility for formulating the education to be accorded a handi-
capped child, and for choosing the educational method most suitable
to the child’s needs, was left by the IDEA to state and local educa-
tional agencies in cooperation with the parents or guardian of the
child." Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 663 (4th
Cir. 1998) (internal quotation marks and alterations omitted).
The IDEA confers upon disabled students substantive and proce-
dural rights that ensure the child’s right to "public education in partic-
ipating States." Honig v. Doe, 484 U.S. 305, 310 (1988).
Substantively, the IDEA requires participating states to provide all
disabled children with a free appropriate public education ("FAPE")
as a condition to the receipt of federal funds. See 20 U.S.C.
§§ 1400(d)(1)(A), 1412(a)(1) (2000).3 As an adjunct to this require-
ment, school officials must create an IEP for each qualifying child to
ensure that the school district is properly discharging this obligation
with respect to each disabled student. See 20 U.S.C.
§ 1414(d)(1)(2000). Procedurally, the IDEA "guarantee[s] parents
both an opportunity for meaningful input into all decisions affecting
their child’s education and the right to seek review of any decisions
they think inappropriate." Honig, 484 U.S. at 311-12. This includes
the "opportunity to present complaints with respect to any matter
relating to the identification, evaluation, or educational placement of
the child." 20 U.S.C. § 1415(b)(6)(2000)(emphasis added).4
AW presents two issues in this appeal. First, AW asserts that his
mid-year transfer by the FCSB violates the "stay-put" provision of the
IDEA, 20 U.S.C. § 1415(j)(2000), as the due process review guaran-
teed to AW’s parents under the IDEA was still proceeding. Second,
AW challenges the substantive determination by the MDR committee
that allowed the FCSB to discipline AW in the same manner as any
non-disabled student. We consider each issue in turn.
3
A FAPE constitutes an education that is specifically designed "to
meet the unique needs of the [disabled] child, supported by such services
as are necessary to permit the child to benefit from the instruction." Todd
v. Duneland Sch. Corp., 299 F.3d 899, 905 (7th Cir. 2002).
4
See also Honig, 484 U.S. at 312 (discussing prior version of section).
6 AW v. FAIRFAX COUNTY SCHOOL BOARD
III.
The first issue raised by AW in this appeal is whether the FCSB’s
decision to transfer him mid-year to the GT program at another school
violated the "stay-put" provision of the IDEA. This provision man-
dates that "during the pendency of any proceedings conducted pursu-
ant to this section, . . . the child shall remain in the then-current
educational placement of such child," absent the consent of school
officials and the parents. Id. (emphasis added). AW argues that the
term "educational placement" encompasses not simply the particular
school to which the student is assigned, but the very classroom in
which he or she receives his or her instruction. According to AW, the
"stay-put" provision thus requires the FCSB to keep him not only in
the GT program, but to keep him in the specific GT program class-
room to which he was originally assigned. In response, the FCSB
argues that "educational placement" cannot have so specific a defini-
tion. The FCSB maintains that the "stay-put" provision protects
against a change in overall educational environment, rather than phys-
ical location. We must therefore determine what Congress meant by
the term "educational placement" and whether the FCSB’s transfer of
AW constituted a change in his then-current educational placement.
A.
In interpreting a statute, we start with the text of the provision at
issue, which here states that school officials may not change a stu-
dent’s "then-current educational placement" while disciplinary pro-
ceedings are pending. 20 U.S.C. § 1415(j). By mandating that the
student’s "educational placement" remain undisturbed for the duration
of any proceedings related to the disciplinary decision, the "stay-put"
provision circumscribes school officials’ ability to unilaterally disci-
pline students covered by the IDEA. See Erickson v. Albuquerque
Public Schs., 199 F.3d 1116, 1121 (10th Cir. 1999); Susquenita Sch.
Dist. v. Raelee S. ex rel. Heidi S., 96 F.3d 78, 83 (3d Cir. 1996). How-
ever, "[n]either the statute nor the legislative history provides guid-
ance for a reviewing court on how to identify ‘the then current
educational placement.’" Ms. S. ex rel. G. v. Vashon Island Sch. Dist.,
337 F.3d 1115, 1133 n.22 (9th Cir. 2003) (internal quotation marks
omitted) (quoting Drinker ex rel. Drinker v. Colonial Sch. Dist., 78
F.3d 859, 865 n.13 (3d Cir. 1996)). Indeed, the IDEA does not define
AW v. FAIRFAX COUNTY SCHOOL BOARD 7
the term "educational placement." Erickson, 199 F.3d at 1121. While
undefined terms in a statute must be given their ordinary meaning,
Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995), and the
terms "educational" and "placement" do have such definitions, it is
clear that Congress intended these words to be construed together as
a term of art. Hence, a recitation of the ordinary meaning of these
independent terms is of little utility. Cf. In re S. Star Foods, Inc., 201
B.R. 291, 293 (Bankr. E.D. Okla. 1996) (noting that an undefined
term of art that may be read narrowly or broadly is ambiguous).
Judicial construction of the term "educational placement" has gen-
erally failed to provide significant clarification. Rather, courts have
alternatively defined the term narrowly or broadly depending on the
circumstances. Thus, for example, educational placement has been
found to refer to anything from "the physical school attended by a
child [to] the abstract goals of a child’s IEP" in varying contexts. Bd.
of Educ. v. Ill. State Bd. of Educ., 103 F.3d 545, 548-549 (7th Cir.
1996) (collecting cases).5 We do not find such an elastic approach to
provide guidance here.6
5
At least one court has attempted to synthesize these definitions by
stating that
[a] transfer to a different school building for . . . reasons unre-
lated to the disabled child has generally not been deemed a
change in placement, whereas an expulsion from school or some
other change in location made on account of the disabled child
or his behavior has usually been deemed a change in educational
placement that violates the stay-put provision if made unilater-
ally.
Hale ex rel. Hale v. Poplar Bluffs R-I Sch. Dist., 280 F.3d 831, 834 (8th
Cir. 2002). However, courts like Hale have reached such conclusions in
the context of expulsions and similar changes in location that result in the
denial of educational services altogether.
6
On occasion, of course, the Supreme Court has concluded that it is
appropriate to allow the definition of a statutory term to be defined by
the factual context in which it is to be applied. In Commissioner v.
Groetzinger, the Court declined to adopt a universal definition of "trade
or business" under the Internal Revenue Code due to "the Code’s wide
utilization in various contexts of the term ‘trade or business,’ in the
absence of an all-purpose definition" and the concern that "an attempt
8 AW v. FAIRFAX COUNTY SCHOOL BOARD
The Supreme Court, however, has indirectly provided insight into
the definition of "educational placement" through its discussions of
the proper application of the "stay-put" provision. In discussing pre-
cursors to the current "stay-put" provision, the Court has twice indi-
cated that its purpose was to "prevent school officials from removing
a child from the regular public school classroom over the parents’
objection pending completion of the review proceedings." Sch.
Comm. v. Dep’t of Educ., 471 U.S. 359, 373 (1985); see also Honig,
484 U.S. at 323 (noting the "stay-put" provision was intended "to strip
schools of the unilateral authority they had traditionally employed to
exclude disabled students, particularly emotionally disturbed students,
from school" (second emphasis added)).
The Court has also indicated that the IDEA was not intended to
"leave educators hamstrung." Id. at 325. To that end, the Court has
held that the "stay-put" provision is not so limiting as to prevent
school officials from resorting to temporary changes short of exclu-
sion, including "the use of study carrels, timeouts, detention, or the
restriction of privileges." Id. According to the Court, such options
constitute only minor departures from prior assignments and "do[ ]
not carry the potential for total exclusion that Congress found so
objectionable." Id. at 325-26 & n.8. Thus, any definition of "educa-
tional placement" must reflect the fact that the "stay-put" provision is
not implicated by temporary changes that track previous assignments
as closely as possible and do not affect a student’s FAPE.7 See United
judicially to formulate and impose a test for all situations would be coun-
terproductive, unhelpful, and even somewhat precarious for the overall
integrity of the Code." 480 U.S. 23, 36 (1987). Nevertheless, we are not
persuaded that multiple definitions of the same term are necessary in this
context, and the parties have failed to indicate a basis from which to con-
clude that Congress intended a definition of "educational placement" that
is predicated on the factual context in which its application arises.
Although the terms underlying the IDEA’s statutory scheme "tend[ ]
toward the cryptic rather than the comprehensive, . . . that is scarcely a
reason for abandoning the quest for legislative intent." Bd. of Educ. v.
Rowley, 458 U.S. 176, 188 (1982).
7
Other provisions in the IDEA beyond the "stay-put" provision reflect
Honig’s influence. In particular, § 1415(k)(1) notes that a school offi-
AW v. FAIRFAX COUNTY SCHOOL BOARD 9
States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (noting that it may
be presumed that Congress "acts with knowledge of existing law, and
that absent a clear manifestation of contrary intent, a newly-enacted
or revised statute is presumed to be harmonious with existing law and
its judicial construction" (internal quotation marks omitted)).
The foregoing "stay-put" jurisprudence indicates that the provision
is certainly violated by a change in location that leads to an outright
denial of educational services. However, the Supreme Court has clari-
fied that temporary changes in location do not violate the "stay-put"
provision provided they do not result in a diminution of the educa-
tional services to which the student is entitled. Since the circum-
stances of AW’s transfer do not fall into either category, resolution
of this appeal requires a clearer definition of the term "educational
placement."
B.
Because the IDEA does not define "educational placement" and, as
a term of art, the term lacks an ordinary meaning, we must examine
cial’s decision to temporarily assign a student to an "interim alternative
educational setting [or] another setting," or to suspend the student, con-
stitutes an explicitly authorized "change in the placement of a child with
a disability." 20 U.S.C. § 1415(k)(1)(A)(i) (2000). This provision tracks
the holding in Honig: that school officials may resort to temporary sus-
pensions or lesser disciplinary measures without effecting a change in the
student’s "educational placement." 484 U.S. at 325. Although the IDEA
does not define "placement" or "setting" either, it uses these terms in the
context of a disciplinary provision which places them in contradistinction
to a student’s educational environment prior to being disciplined. See
§ 1415(k)(1)(A)(i). The least dramatic departure from the student’s envi-
ronment authorized by the IDEA is an assignment to an "interim alterna-
tive educational setting," which the IDEA describes as a setting that
allows the student to continue his educational program without interrup-
tion. See §§ 1415(k)(1)(A)(i), (3)(B)(i). At the other end of the spectrum
is suspension, an option which permits the school to deny the student
access to both his or her regular educational program and the school
itself. Thus, a change in "placement" occurs when a school places the
student in a setting that is distinguishable from the educational environ-
ment to which the student was previously assigned.
10 AW v. FAIRFAX COUNTY SCHOOL BOARD
the IDEA to distill a definition that "can most fairly be said to be in
the statute, in the sense of being most harmonious with its scheme and
with the general purposes that Congress manifested." Comm’r v.
Engle, 464 U.S. 206, 217 (1984) (internal quotation marks omitted).
Toward that end, we note that the IDEA rests on two primary prem-
ises: that all disabled students receive a FAPE and that each disabled
student receive instruction in the "least restrictive environment"
("LRE") possible. See, e.g., Bd. of Educ. v. Rowley, 458 U.S. 176,
180-82 (1982) (discussing precursor to the IDEA); Bd. of Educ. v. Ill.
State Bd. of Educ., 184 F.3d 912, 915 (7th Cir. 1999) (discussing 34
C.F.R. § 300.550 (2003)).
As noted above, the FAPE requirement addresses the substantive
content of the educational services the disabled student is entitled to
receive under the IDEA. The LRE requirement reflects the IDEA’s
preference that "[t]o the maximum extent appropriate, children with
disabilities, including children in public or private institutions or other
care facilities, are educated with children who are not disabled." See
20 U.S.C. § 1412(a)(5) (2000); 34 C.F.R. § 300.550(b)(1). However,
this preference for "mainstreaming" disabled students is not absolute;
§ 1412(a)(5) permits the delivery of educational services to disabled
students in less integrated settings as necessitated by the student’s dis-
ability. A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 330 (4th Cir.
2004).
Although the foregoing indicates that the definition of "educational
placement" should reflect the "mainstreaming" ideal of the LRE
requirement, it does not appear that the term also includes the precise
physical location where a disabled student is educated. The LRE
requirement directs that the disabled student be assigned to a setting
that resembles as closely as possible the setting to which he would be
assigned if not disabled. See Rowley, 458 U.S. at 202-03 & n.24. The
IDEA’s concern with location thus focuses on the degree to which
any particular assignment segregates a disabled student from non-
disabled students, rather than on the precise location of the assign-
ment itself. Given the IDEA’s concern with "mainstreaming" and
appropriate educational content, we find little support in the IDEA’s
underlying principles for AW’s assertion that "educational placement"
should be construed to secure his right to attend school in a particular
classroom at a particular location.
AW v. FAIRFAX COUNTY SCHOOL BOARD 11
C.
The IDEA’s emphasis on educational content and instructional
environment are reflected in the regulations promulgated by the
Department of Education. Indeed, in a recent case, the parents of a
disabled student challenged the school district’s decision to transfer
their disabled child to another school as violative of the IDEA’s "stay-
put" provision by citing 34 C.F.R. § 300.552 (2003), which provides
criteria for determining a disabled student’s "‘educational place-
ment.’" White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d
373 at 379-80 (5th Cir. 2003). Noting the directive in § 300.552 that
the "placement" assignment be "as close as possible to the child’s
home" and that the child be "educated in the school that he or she
would attend if nondisabled," the parents argued that "educational
placement" extends to the particular building to which their child was
assigned. 343 F.3d at 379-80.
As noted by the White court, however, another provision in the reg-
ulations undercuts this interpretation and suggests that the regulations
continue the IDEA’s concern with the extent to which any particular
assignment reflected the "mainstreaming" ideal, rather than the pre-
cise location of that assignment. Section 300.551 describes different
"placement" options that school boards must make available to dis-
abled students, including "regular classes, special classes, special
schools, home instruction, and instruction in hospitals and institu-
tions." 34 C.F.R. § 300.551 (2003). Noting that these options were
differentiated from each other by the extent to which they departed
from a "mainstream" assignment, the court concluded that the term
"placement" as used in the regulations refers only to the setting in
which the student is educated, rather than the precise location. See
343 F.3d at 380. To the extent § 300.552(b) states that school officials
shall ensure that the placement "is as close as possible to the child’s
home," this language does not mandate that the student be assigned
to the closest school, but simply to one that is as "close as possible."8
8
At argument, counsel for AW argued that the school officials and
hearing officer in question lacked the authority to transfer AW during the
school year, apparently relying on 8 Va. Admin. Code § 20-80-68(C)
(2001). While we are aware of cases holding that "state standards that
12 AW v. FAIRFAX COUNTY SCHOOL BOARD
Consideration of the structure and the goals of the IDEA as a
whole, in addition to its implementing regulations, reinforces our con-
clusion that the touchstone of the term "educational placement" is not
the location to which the student is assigned but rather the environ-
ment in which educational services are provided. To the extent that
a new setting replicates the educational program contemplated by the
student’s original assignment and is consistent with the principles of
"mainstreaming" and affording access to a FAPE, the goal of protect-
ing the student’s "educational placement" served by the "stay-put"
provision appears to be met. Likewise, where a change in location
results in a dilution of the quality of a student’s education or a depar-
ture from the student’s LRE-compliant setting, a change in "educa-
tional placement" occurs.9
D.
In light of our conclusion that "educational placement" fixes the
overall instructional setting in which the student receives his educa-
tion, rather than the precise location of that setting, we conclude that
AW’s transfer between such materially identical settings does not
implicate the "stay-put" provision of § 1415(j). See White, 343 F.3d
at 380. The parties do not dispute that the GT program at the nearby
elementary school to which the FCSB transferred AW was materially
identical in its educational offerings and that AW would be placed in
an identical setting (a regular GT program classroom). Moreover,
there is nothing in the record to suggest that the new location selected
impose a greater duty to educate disabled children," if consistent with
federal standards, "are enforceable in federal court under the IDEA,"
Erickson, 199 F.3d at 1122 (internal quotations omitted), § 20-80-68(C)
addresses "[l]ong-term removals" and, as noted above, the transfer did
not constitute a removal from AW’s setting.
9
We recognize the possibility that a transfer to a different school might
entail a commute so long or arduous as to negatively impact the student’s
ability to excel in the otherwise identical setting. However, we are not
confronted by this issue in this appeal. The materials provided by the
parties indicate that the schools at issue are separated by less than five
miles; the school to which AW was transferred is less than two miles far-
ther away from his home.
AW v. FAIRFAX COUNTY SCHOOL BOARD 13
for AW by the FCSB would work such a change in the student’s rou-
tine that the new location cannot fairly be described as an identical
setting.10
We note further that our interpretation of "educational placement"
would not change the result of the cases on which AW relies. The
numerous cases cited by AW reached their conclusions in the context
of a clear change in setting under the definition described above, such
as an indefinite expulsion. See, e.g., Honig, 484 U.S. at 312 (two
emotionally disturbed students expelled indefinitely); Sch. Bd. of
Prince William County v. Malone, 762 F.2d 1210, 1212 (4th Cir.
10
In his brief, AW notes that his February 2002 IEP, implemented just
days before the incident for which he was suspended, states that AW
"will be attending the GT center at Kilmer [Middle School]," the school
to which he would likely have continued, "in 7th grade." J.A. 158. We
are not persuaded that AW’s characterization of this statement as control-
ling of his future placement is correct, however. As a threshold matter,
the IDEA only requires that an IEP specify the location where the stu-
dent’s special education and related services are to be received, not
where the student pursues his general educational program. See
§ 1414(d)(1)(A)(vi). Given that there are separate statutory and regula-
tory provisions regarding "placement," including provisions suggesting
that the IEP and placement issues are separate and successive consider-
ations, see, e.g., 34 C.F.R. § 300.300(a)(3)(ii) (stating that placement
decisions should be made based on the child’s "unique needs"); 34
C.F.R. pt. 300, app. A (noting that "[t]he appropriate placement for a par-
ticular child . . . cannot be determined until after decisions have been
made about the child’s needs and the services that the public agency will
provide"), we find it incongruous to conclude that any statement in a cur-
rent IEP regarding future placement should be controlling. Second,
AW’s February 2002 IEP was superseded in April when AW’s IEP team
reconvened in the wake of AW’s suspension as required by § 1415(k)
and instituted a revised IEP that omitted any reference to future place-
ment. Although AW’s parents indicated their dissatisfaction with AW’s
April IEP by declining to sign it, the right conferred by the IDEA on par-
ents to participate in the formulation of their child’s IEP does not consti-
tute a veto power over the IEP team’s decisions. See White, 343 F.3d at
380 (collecting cases). Third, our review of the materials in the joint
appendix reveals no other basis to conclude the FCSB could not unilater-
ally elect to deny AW enrollment at the junior high of his choice had the
March 2002 incident not occurred.
14 AW v. FAIRFAX COUNTY SCHOOL BOARD
1985) (expulsion for remainder of school year); Kaelin v. Grubbs, 682
F.2d 595, 598 (6th Cir. 1982) (expulsion for remainder of school
year); S-1 v. Turlington, 635 F.2d 342, 348 (5th Cir. 1981)
("[E]xpulsion is still a proper disciplinary tool under the (Education
for all Handicapped Children Act) . . . when proper procedures are
utilized and under proper circumstances."), abrogated on other
grounds by Honig, 484 U.S. at 317; cf. Hale, 280 F.3d at 832 (transfer
from home schooling to a school). Under our interpretation of "educa-
tional placement," such actions would still violate the "stay-put" pro-
vision as they constitute clear and permanent changes in setting.
Because the FCSB’s decision to change the location of AW’s assign-
ment did not result in a change in educational setting, we find the
transfer decision did not violate the "stay-put" provision.11
IV.
AW’s substantive challenge to the FCSB’s transfer decision
addresses the adequacy of the MDR committee’s determination that
his disability did not factor into the conduct for which he was sus-
pended. As noted above, the IDEA requires that before any school
can discipline a student, the school must determine whether the stu-
dent’s misconduct is related to the student’s disability. If it is, the
school officials are confined to the limited disciplinary measures
11
Finally, even if the "stay-put" provision were violated here, the cir-
cumstances of this case appear to foreclose the possibility of relief. At
the time of the transfer in April 2002, AW was just months away from
graduating from sixth grade and moving on to the seventh grade at
another school. While the "stay-put" provision does remain in effect until
the conclusion of both administrative and judicial review, including this
appeal and any subsequent review by the Supreme Court, Verhoeven v.
Brunswick Sch. Comm., 207 F.3d 1, 6 (1st Cir. 1999), it would be
unworkable at this juncture to return AW to his "then-current educational
placement" as defined in his brief. AW does not seek to use the "stay-
put" provision, as he interprets it, to return to his educational placement
as it existed prior to his transfer: his sixth-grade classroom at his original
school. Rather he seeks to return to the junior high school track that
would have flowed from the earlier assignment. However, AW would
have been subject to the transfer at the conclusion of the review process,
making the junior high school track applicable to the school to which he
was ultimately transferred the appropriate one.
AW v. FAIRFAX COUNTY SCHOOL BOARD 15
described in § 1415(k)(1)(A)(i). However, if the MDR committee
concludes that the child’s disability did not factor into the student’s
conduct, then the school may discipline that student as it would any
other. See § 1415(k)(5).
The issues the MDR committee must consider are clearly defined
by the IDEA. The MDR committee must gather "all relevant informa-
tion," including any "evaluation or diagnostic results," any "observa-
tions of the child," and "the child’s IEP and placement." See
§ 1415(k)(4)(C)(i). The MDR committee must then decide whether:
(1) "the child’s IEP and placement were appropriate and the special
education services . . . were provided consistent with the child’s IEP
and placement"; (2) the child’s disability impaired his ability to
understand "the impact and consequences of the behavior subject to
disciplinary action"; and (3) the child’s disability impaired his ability
"to control the behavior subject to disciplinary action."
§ 1415(k)(4)(C)(ii).
The parties disagree as to the nature of AW’s disability. Although
it is undisputed that AW suffers from ADHD and ODD, the hearing
officer and district court concluded that these disorders did not figure
in the "emotional disability," J.A. 72, that rendered AW eligible for
special education under the IDEA. The hearing officer and district
court concluded instead that these conditions constituted "social mal-
adjustment," id., which was not a basis for coverage under the IDEA,
and therefore the MDR committee need not have inquired whether
these conditions impacted the adequacy of AW’s IEP or his conduct.
Based on our review of the record, we conclude the MDR commit-
tee’s conclusion was sound, although for slightly different reasons
than relied on by the district court. AW’s IDEA eligibility form is
only marginally instructive, as it states that AW is eligible based on
his "difficulties maintaining focus and completing academic tasks as
required" and avoiding "many tasks, especially when they involve
writing." J.A. 135. Additionally, the form notes that "Social Malad-
justment has been ruled out as the PRIMARY cause of identified
characteristics," id., but does not exclude the possibility that it plays
a secondary role in his qualifying disability.
A psychological and educational evaluation conducted in Decem-
ber 2000, however, indicates that while ADHD was a central feature
16 AW v. FAIRFAX COUNTY SCHOOL BOARD
of the emotional disability that qualified AW for special education
services under the IDEA, ODD was not. In that evaluation, a psychol-
ogist at AW’s elementary school concluded that AW’s primary diffi-
culty was his inability to concentrate and hyperactivity, two
undisputed symptoms of ADHD. Although the evaluation also noted
AW’s tendency towards "frequent confrontations with authority fig-
ures," and that "[t]his behavioral pattern may also lead to difficulties
relating to peers at times," id. at 171 (emphasis added), the evaluation
nevertheless makes clear that AW’s primary difficulty was behavior
associated with ADHD that hampered his ability to thrive education-
ally. The psychologist concluded that "structure, consistency, predict-
ability, and immediate feedback are critical in the development of any
plan to address difficulties related to attention, impulsivity and con-
centration," and recommended that due to AW’s hyperactivity,
"teachers [should] consider a variety of modifications in his school
program," which would apparently include the very special education
services subsequently implemented through AW’s IEP. Id. at 173
(emphasis added). By contrast, with respect to AW’s "interpersonal
and emotional difficulties," the evaluation concluded that outside
counseling should be encouraged. Id. This evaluation strongly sug-
gests that ADHD figured prominently in AW’s qualifying disability,
but ODD did not.
We therefore find no error in the MDR committee’s conclusion that
AW’s IEP and placement in a general curriculum GT program was
appropriate, and that his ADHD did not figure into the behavior for
which he was to be disciplined. With respect to the adequacy of AW’s
IEP, we note that the IEPs of February 2001 and February 2002
focused on the complications occasioned in AW’s schoolwork by his
ADHD and identified his "social/emotional" difficulties as a matter
for out-of-school counseling with a private counselor. This approach
conforms to the recommendations made by the school psychologist in
his evaluation of AW just prior to AW’s IDEA eligibility determina-
tion. Moreover, nothing in the IEPs or the school psychologist’s eval-
uation suggests that AW’s interpersonal difficulties were so
substantial that they could not be managed by outside counseling or
that they would be exacerbated by being placed in the general GT cur-
riculum with other students.
We likewise find no basis in the administrative record to conclude
that ADHD figured into the conduct for which AW was disciplined.
AW v. FAIRFAX COUNTY SCHOOL BOARD 17
It is undisputed that AW is an intelligent student, and that AW was
not only aware of the consequences of sending the threatening mes-
sage to the targeted student, but anticipated them by enlisting another
student to actually place the note. To the extent that students with
ADHD may be described as impulsive, the circumstances of the con-
duct for which AW was disciplined indicated forethought and investi-
gation, as he had to figure out a way to gain access to his target’s
personal folder. Given these circumstances, we find no error in the
MDR committee’s conclusion that AW’s IEP and placement were
appropriate to his ADHD, and that his ADHD did not figure into the
conduct for which he was disciplined by the FCSB.
V.
Because we find that the specific location where the student is
being educated is not controlling in a determination of educational
placement in this context, and that the MDR committee’s evaluation
was appropriate given the nature of AW’s disability, we find no error
in the reasoning of the DPR Officer or the district court. Accordingly,
the district court’s order is
AFFIRMED.