Autism, Burlington, and Change: Why It Is Time for a New Approach to the IDEA's Stay-Put Provision

Autism, Burlington , and Change: Why It Is Time for a New Approach to the IDEA’s Stay-Put Provision Michael A. Brey  ABSTRACT: The “stay-put provision” of the Individuals with Disabilities Education Act (“IDEA”) serves as an “automatic preliminary injunction” to prevent any change in a student’s then-current educational placement until the student’s parents and the local educational agency (usually a school district) resolve a dispute over the student’s education through administrative and judicial proceedings. The stay-put provision not only prevents schools from excluding students, but also prevents students from being whipsawed between placements as the school district and parents appeal adverse decisions. Today, the proper application of the stay-put provision continues to be hotly contested, most recently in the circuit split identified by the Third Circuit’s decision in M.R. v. Ridley School District . Critical to—but not disputed in— Ridley School District is the one-sentence dictum regarding the stay-put provision’s agreement exception from the 1985 Supreme Court case School Committee of Burlington v. Department of Education . Although the Burlington dictum was not binding precedent and is easily distinguished, lower courts applied it with such reflexivity that the U.S. Department of Education eventually promulgated a regulation for no other stated reason than to codify “this longstanding judicial interpretation.” Surprisingly, however, Burlington ’s interpretation of the agreement exception has rarely been scrutinized or justified. As a result and for the first time, this Note comprehensively scrutinizes the Burlington dictum and its possible rationales, and concludes that it is time for the courts and the Department of Education to abandon the dictum in light of recent changes to  J.D. Candidate, The University of Iowa College of Law, 2016; B.S., B.A., University of Utah, 2013. Thank you to Amanda Beggs, Peter Chalik, Josh Feil, Vince Geis, Jessica Donels, Josh Irwin, Dylan McKinnon, Emily Summers, Kimberly Topel, and the many Iowa Law Review editors and student writers for their helpful comments and suggestions; thank you to my mother and father for their tireless dedication to students and for teaching me in life and in love; and special thanks to Matthew, my “buddy,” for inspiring this Note. 746 IOWA LAW REVIEW [Vol. 101:745 the IDEA and the unnecessary instability it creates for students with disabilities—especially those with autism spectrum disorder. I. INTRODUCTION ............................................................................. 747 II. IDEA ORIGINS AND FUNDAMENTALS ............................................ 749 A. T HE H ISTORICAL T REATMENT OF S TUDENTS WITH D ISABILITIES AND THE P USH FOR C HANGE .................................................... 750 B. B ASIC R EQUIREMENTS OF THE IDEA ......................................... 752 1. Free Appropriate Public Education ............................. 753 2. Individualized Education Program .............................. 754 3. Least Restrictive Environment ..................................... 755 4. Related Services ............................................................. 755 5. Procedural Protections ................................................. 756 C. T HE S TAY -P UT P ROVISION ....................................................... 757 1. Purposes of the Stay-Put Provision ............................... 757 2. Applying the Stay-Put Provision ................................... 758 i. Identifying the Student’s “Then-Current Educational Placement” ................................................................ 758 ii. Applying the Stay-Put Provision Through Judicial Appeals ..................................................................... 759 III. THE DICTUM AND INSTABILITY OF THE B URLINGTON INTERPRETATION .......................................................................... 760 A. T HE S TAY -P UT P ROVISION ’ S A GREEMENT E XCEPTION ............... 761 B. SCHOOL COMMITTEE OF BURLINGTON V. DEPARTMENT OF EDUCATION ........................................................................... 763 C. BURLINGTON ’ S I NADVERTENT I NSTABILITY ............................. 766 1. The Innocuity of the Burlington Interpretation in Burlington ....................................................................... 766 2. The Instability of the Burlington Interpretation in Other Situations ....................................................................... 766 D. I NSTABILITY ’ S E FFECTS ON S TUDENTS WITH A UTISM S PECTRUM D ISORDER ............................................................................... 768 E. I NADEQUATE R ATIONALIZATIONS FOR THE BURLINGTON I NTERPRETATION .................................................................... 769 1. Statutory Language ....................................................... 770 2. The “Ponderous” Review Process ................................. 772 IV. ABANDON, REPEAL, AND AMEND: RESTORING STABILITY FOR STUDENTS WITH DISABILITIES ....................................................... 774 V. CONCLUSION ................................................................................ 777 2016] AUTISM, BURLINGTON , AND CHANGE 747 I. INTRODUCTION The “stay-put provision” of the Individuals with Disabilities Education Act (“IDEA”) 1 is central to the due process protections provided to students with disabilities. 2 Under the IDEA, states must provide students with disabilities a “free [and] appropriate public education” (“FAPE”). 3 Because parents and school districts 4 must collaborate to determine and develop a FAPE for each individual student, disputes frequently arise. 5 To resolve these disputes, the IDEA provides for administrative and judicial proceedings. 6 In the meantime, however, the student must still receive an education. 7 As a result, the stay-put provision acts as an “automatic preliminary injunction” 8 that prevents any change in the student’s educational placement “until all such proceedings have been completed.” 9 In this way, the stay-put provision: (1) prevents schools from excluding students with disabilities (as was historically the case); 10 and (2) protects students from being whipsawed between placements as school districts and parents exhaust due process proceedings. 11 Today, the stay-put provision “impacts to some degree virtually every case involving an administrative challenge under the IDEA.” 12 Accordingly, it continues to be one of the most contentious and litigated aspects of the IDEA. 13 For example, there is currently a circuit split over whether the stay- 1. Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105–17, § 615(j), 111 Stat. 37, 93 (codified at 20 U.S.C. § 1415(j) (2012)); see also infra Part II.C (discussing the stay-put provision). 2. As disability laws have evolved, so have the words we use to describe the individuals they protect. Patrick J. Devlieger, From Handicap to Disability: Language Use and Cultural Meaning in the United States , 21 DISABILITY & REHABILITATION 346, 347 (1999). This Note will, whenever possible, use the “people first” language of “persons with disabilities.” See id. at 347–48 (observing that the now-common phrase “persons with disabilities” emphasizes that “disability is only part of identity”). Nevertheless, because courts and legislatures regularly used now-outmoded terms like “handicapped,” the use of such terms is inevitable when discussing the development of disability law. See id. at 347 (noting that the term is “no longer used” in legislation and official documents). 3. 20 U.S.C. § 1415(b)(1); see also infra Part II.B.1 (discussing the FAPE requirement). 4. For purposes of this Note the terms “school district” and “local educational agency” are used interchangeably. See 20 U.S.C. § 1415(j) (exclusively using “local educational agency”). 5. See infra Part II.B.2 (discussing the collaborative process of developing an “individualized education program” to implement a FAPE); see also infra Part II.B (noting that the requirements of the IDEA provide “ample room” for parents and school districts to disagree). 6. 20 U.S.C. § 1415(e). 7. See infra Part II.B.5 (discussing the due process protections provided by the IDEA); see also infra Part II.C (discussing how the stay-put provision provides for the student’s education during dispute resolution). 8. Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1037 (9th Cir. 2009). 9. 20 U.S.C. § 1415(j). 10. See infra Part II.A (discussing how schools historically excluded students with disabilities). 11. See infra Part II.C.1 (discussing the purposes of the provision). 12. Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 82 (3d Cir. 1996). 13. HOWARD FULFROST ET AL., FAGEN FRIEDMAN & FULFROST, LLP, IDEA DUE PROCESS SURVIVAL GUIDE: A STEP-BY-STEP COMPANION FOR ADMINISTRATORS AND ATTORNEYS 5:1 (2008). 748 IOWA LAW REVIEW [Vol. 101:745 put provision operates through judicial appeals or whether it ceases to operate after a trial court’s review of prior administrative proceedings. 14 In early 2015, the Supreme Court considered whether to grant certiorari to review one of the cases which created this circuit split, but ultimately denied the petition. 15 Critical to—but not disputed in—the circuit split is the Supreme Court’s interpretation of the stay-put provision’s agreement exception in the 1981 case School Committee of Burlington v. Department of Education (“the Burlington interpretation” or “the Burlington dictum”). 16 The agreement exception provides that a student may change educational placements if “the State or local educational agency and the parents . . . agree” to the change. 17 In Burlington , the Supreme Court noted—in one sentence of passing dictum 18 — that a decision in a state administrative proceeding in favor of the parents’ request for change “would seem to constitute [such an] agreement by the...