“Stay put” is a procedural safeguard that provides that a student will remain in the “then-current” educational placement while a due process complaint is pending.
In a recently decided case, parents challenged a proposed IEP in 2023 for their student who was reenrolling in public school after a period of four years. They sought a stay put injunction pursuant to an IEP developed in 2019, the last time the child had attended public school. (J.L. v. Williamson County Tennessee Board of Education (124 LRP 29201).
The 14 year-old student had both ADHD and disruptive mood dysregulation disorder, and an IEP was developed for them. In 2019, the student was in 4th grade and placement at the time was in both regular and special education classrooms with behavioral supports to accompany them when with non-disabled peers.
The student’s behaviors included eloping, verbal and physical aggressive outbursts, and throwing furniture and other items. During 2019, when the behaviors escalated, the IEP team proposed changing the student’s placement to a therapeutic classroom to provide wraparound support with a goal of resuming a less restrictive setting if successful.
Parents disagreed with the proposed IEP and filed for due process, and stay put was implemented. During that time, the Board also filed for due process when behaviors escalated, seeking immediate removal due to the substantial likelihood they would injure either self or others.
The parents and district settled the stay put issue part of the due process in 2020, with the parents agreeing to three hours per week of homebound instruction. The parents then moved the student to a private school and settled the pending due process. The agreement provided that the private school would not be the stay put placement and that the district would reimburse the parents for expenses for attendance at the private school.
The private school was unable to manage the student’s behaviors and parents homeschooled the student for the 2021-22 school year. A second due process also was settled. Upon returning to public school, the parents again disagreed and filed a third due process complaint, alleging the district was denying the student a FAPE in the least restrictive environment.
At the third due process hearing, the hearing officer found in favor of the Board, also finding that the student was in elementary school when they left public school and now would be attending middle school. Because of the gap in public school enrollment and the fact that the parents had unilaterally removed to a private school, the hearing officer found that stay put placement rights were waived.
The parents appealed and filed for an injunction to enforce their stay put rights, which would require the student to be placed in a regular education classroom with peers. The district court denied the injunction and the parents appealed, again requesting an injunction to order the stay put placement.
The 6th Circuit Court of Appeals determined that stay put requires the child be maintained in the child’s “then-current educational placement.” The statute does not define “then-current educational placement.” The court reviewed other circuit court decisions and the legislative history, and determined that three factors are important in resolving stay put disputes.
First, the placement has to be agreed-upon (i.e. not unilateral). Second, the placement set forth in the last-implemented IEP is relevant but not dispositive. Third, timing is critical. On the third factor, the 6th Circuit panel noted that some courts define the timing of determining the stay put placement as the time when due process is filed while others refer to the last agreed-upon placement before the dispute arose.
The court determined that there was no agreed-upon placement for the student to remain in because the parents had unilaterally removed him from the agreed-upon homeschool placement to a private school in the first settled due process. The last agreed-upon placement was homeschool, and prior to that, the 2019 IEP general education setting was not a current placement at the time of filing the due process. No stay put rights were created by any court or hearing officer because the previous due process cases had been settled.
Therefore, “preserving the status quo” was difficult because there was no status quo to preserve. The student had been in three unilateral private placements since 2020. The 2019 IEP was not a “then-current” placement and was not a functioning IEP when the dispute arose, and it was also not “the last agreed-upon placement.”
The court held the parents were not entitled to an injunction providing that the stay-put placement was the 2019 IEP placement because the student had no “then-current educational placement” in which they could “remain.” The court noted that the issue here was not whether the parents had forfeited stay put rights. Rather, because of the prolonged gap in IEP services due to multiple unilateral placements by the parents, there was no stay put to begin with.
What this means for your district:
While the fact pattern in this case – multiple unilateral placements and a years-long gap in public school enrollment – should be fairly rare, some aspects of the court’s reasoning could apply more broadly. This case clarifies that a school district is not obligated to maintain a student’s previous IEP placement if the student has been withdrawn from the district for an extended period and has undergone multiple unilateral placements by the parents. The purpose of IDEA’s stay-put provision is to preserve the status quo. Consequently, if a student has not been continuously enrolled in the public school system and the last agreed-upon IEP has expired, the district possibly may not be required to revert to that placement.