Stay Put is a Powerful Tool

Stay put is the mechanism intended to ensure stability for students while parents and school districts work out their disputes.  Under 20 U.S.C. §1415(j), “during 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…”  Similarly, in Massachusetts, under 28 CMR 28.08 (7), “during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.”  New Hampshire’s stay put regulation is Ed. 1123.23.

So, what happens if a student is in an out-of-district placement, which the parent approves of, but the school district wins at due process for a different placement, and the parent appeals to federal court?  This was the scenario in a recent decision handed down by the Massachusetts Bureau of Special Education Appeals.  In the case of In Re: Boston Public Schools v. Student – BSEA # 15-03083 & BSEA # 14-01653, a Boston student was attending the READS Collaborative, pursuant to a prior stay put decision of the BSEA. Boston then filed for a hearing, asking the BSEA to rule that its proposed placement at a different school – the Horace Mann School – was appropriate for the student. Boston won that due process hearing. Ordinarily, this would mean that the student would need to start attending the Horace Mann School instead of READS. However, the Parent in this case appealed to the U.S. District Court.

The dispute then became the issue of what the stay put placement should be. The Parent claimed that stay put should be READS, since that was the then-current placement of the student. Boston argued that stay put should be the Horace Mann School, since that was the decision of the BSEA hearing officer.

Hearing Officer Rosa Figueroa ruled in favor of the Parent. The reasoning for this decision was that the students then-current placement was indeed the READS Collaborative. Even though Boston won the case at the BSEA in favor of the Horace Mann School, the the fact that the Parent appealed the case to U.S. District Court meant that they were still legal proceedings that were pending. To ensure stability for the student, the hearing officer maintained READS as stay put while the dispute worked its way through the system.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

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