Here’s what happened in Comal ISD: at an ARD meeting just prior to the 2020-21 school year the school district proposed a change of placement for a student, moving the student from the general education classroom to a special education setting. In Toolbox terminology, we would call this the use of Tool #2….if the parent agreed with the move. However, the parent did not agree, and so the district went with Tool #3—an Educational Change of Placement Without Parental Agreement.
When we talk about Tool #3 in our Toolbox Training we emphasize that the district needs to think about how the “stay put” rule will affect the outcome. Remember: if the parent disagrees with a proposed change of placement and requests a due process hearing, this automatically invokes “stay put.” Thus the student isn’t going anywhere.
That’s what happened here when the mother requested a special education due process hearing on August 31, 2020. The student stayed put while the hearing was pending, all the way to March 19, 2021 when the hearing officer rendered a decision in favor of the school district. “Stay put” had been in effect for over six months. But since the hearing officer agreed with the school that the change in placement was appropriate, stay put is over….right?
That’s what the school district argued. That’s not what the court ruled. The federal judge ruled that “stay put” was still in effect because the parent had given notice that she intended to appeal the hearing officer’s decision to federal court. Citing cases that have made the same ruling in the 1st, 3rd, 4th and 9th Circuits, the court held that “stay put” remains in effect as long as judicial appeals continue.
So let’s be clear about how that could play out. Consider this hypothetical:
August 27, 2021: District calls for a change of placement from general education classroom. Parent disagrees. ARD concludes in non-consensus.
August 31, 2021: Parent requests due process hearing. STAY PUT GOES INTO EFFECT. Student stays in general education classroom.
November 5, 2021: Hearing officer rules in favor of the district.
November 8, 2021: Parents inform the district that they intend to appeal to federal court. THIS KEEPS STAY PUT IN EFFECT. Parents have 90 days to file that appeal.
February 1, 2022: Parent files appeal. STAY PUT STILL IN EFFECT.
After that, there is no telling how long your timeline extends. It may be a year or two before the judge issues a decision, and even then, parents can appeal to the 5th Circuit. In which case, STAY PUT STAYS IN EFFECT.
It’s not hard to imagine a situation in which a student ages three to six years while litigation continues. But the “stay put” placement remains in effect. Of course the “stay put” placement can always be changed by agreement of the parties, and we would hope that in this type of situation the parties would be able to come to agreements that serve the student well.
Do you see how important it is that you always maintain good relationships with the parents? It’s much harder to serve the student well when the grown-ups are fighting.
This one is H.W. v. Comal ISD, decided by the federal court for the Western District of Texas on April 21, 2021. We found it at 2021 WL 1566453.
DAWG BONE: BE SURE TO THINK ABOUT “STAY PUT” BEFORE YOU PULL TOOL #3 FROM THE TOOLBOX.
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Tomorrow: Have you ever been called to testify?