Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

RULING AND ORDER
ON "STAY PUT" PLACEMENT

The Parties to this proceeding are:

Pursuant to a scheduling order the parties filed papers on April 23, 2001 setting forth their respective positions regarding the proper placement for [Student] (the "Student") during the pendency of the due process hearing, commonly known as the "stay put" placement. I conclude that the proper stay put placement is Milton High School, as claimed by the Student.

As of March 21, 2001, the Student’s special education placement had been at Milton High School ("MHS"). On that day the District entered a "Determination of Notice of Placement" changing the placement to an alternative school known as Milton Edgerton Clinton Alternative School ("MECAS"), with a "projected date of implementation" of April 2, 2001. The placement at MECAS has now been implemented, so the Student is presently enrolled there.

By letter dated April 5, 2001, counsel for the Student advised the District that he had been recently retained to represent the Student regarding the change of placement. Counsel informed the District that he was prepared to file a due process hearing request and then seek an order for a stay put placement at MHS, but that he would defer doing so for a week to allow the parties an opportunity to resolve the dispute "outside of a litigation context". Counsel’s efforts to avert the filing of a due process hearing request were unsuccessful. Counsel then filed a request for a due process hearing dated April 13, 2001, challenging the placement at MECAS. As part of that request, counsel stated that he was also "assert[ing] [Student]’s stay put rights to be returned to his last agreed upon placement at" MHS.

Impartial hearing officers appointed to resolve special education disputes have the authority to determine the proper "stay put" placement of a child. Letter to Armstrong, 28 IDELR 303 (OSEP 1997).

The "stay put" provision of the Individuals with Disabilities Education Act (IDEA) provides that "during the pendency of any proceedings … the child shall remain in the then-current educational placement of such child" unless the parties agree otherwise. 20 U.S.C. 1415(j). The federal regulation implementing the statutory stay-put provision provides that during the pendency of administrative proceedings the child "must remain in his or her current educational placement," absent an agreement otherwise. 34 C.F.R. § 300.514(a).

Section § 115.80(8), Wis. Stats., is to similar effect as the federal statute and regulation, but states the stay put requirement in different terms. It provides that "during the pendency of any proceedings under this section, the local educational agency may not change the educational placement of a child unless the parents agree to the change." (Emphasis supplied). There is no substantive difference between the "must remain" language of the federal law and the "may not change" language of the state law. See Wis. Stat. § 115.758, which provides: "To the extent possible, this subchapter shall be construed in a manner that is consistent with 20 USC 1400 to 1487."

The purpose of the stay put provision is to "prevent school officials from removing a child from the regular public school classroom over the parents’ objection pending completion of review proceedings". School Comm. of the Town of Burlington v. Dept. of Ed. of Mass., 471 U.S. 359, 373 (1985). The stay put 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." Drinker v. Colonial School District, 78 F.3d 859, 864 (3d Cir. 1996). The stay put provision imposes an "absolute rule in favor of the status quo". Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982).

The term "current educational placement" is not defined in the statute or regulations. Courts have ruled that for purposes of "stay put" a child’s "current educational placement" is generally "the place to which the agency and parents consented before the parents requested a due process hearing." Warton v. New Fairfield School District, 33 IDELR 269 (D. Conn. 2000), citing Zvi D. v. Ambach, 694 F.2d at 906.

The dispute here concerns the Student’s removal from the regular education environment by dint of a formal placement determination that was announced on March 21, 2001 and implemented on or about April 2, 2001. The Parents, through counsel, lodged an unequivocal written objection to this change of placement the same week it was implemented, albeit several days afterward. No evidentiary material has been proffered, however, that would indicate that the Parents ever consented, either expressly or impliedly, to the change of placement from the regular education environment to an alternative school.

The short interval between the time that the District implemented the change of placement, through the time that counsel lodged a written objection to it, does not establish that the Parents impliedly consented to it for purposes of determining the proper stay-put placement. This interval is also an insufficient period of time for the alternative school to have become rooted as the "status quo", particularly since the change of placement removed the Student from the regular education environment, at variance with the "strong preference" for "mainstreaming" expressed in the IDEA. Lachman v. Illinois Board of Education, 852 F.2d 290 (7^th Cir. 1988); see 34 C.F.R. §§ 300.500—300.554.

The Parents have not consented to the change of placement from the regular education environment to the alternative school, so the proper stay-put placement is Milton High School.

IT IS THEREFORE ORDERED that the "stay put" placement for the Student shall be Milton High School.

Dated at Milwaukee, Wisconsin, this 24th day of April 2001.