David and Jennifer PARDINI, on behalf of themselves and on behalf of their minor child, Georgia Pardini, Appellants v. ALLEGHENY INTERMEDIATE UNIT; Barbara Minzenberg, Program Director.
No. 03-2897, 03-3988
United States Court of Appeals, Third Circuit.
Argued Nov. 12, 2004. Aug. 29, 2005.
420 F.3d 181
William C. Andrews, (Argued), Christina Lane, Andrews & Price, Pittsburgh, PA, for Appellees.
Janet F. Stotland, (Argued), Philadelphia, PA, for Amicus-Appellant.
Linda F. Thome, Unites States Department of Justice, Civil Rights Division, Washington, D.C., for Amicus-Appellee.
Before McKEE, CHERTOFF,1 Circuit Judges and BUCKWALTER,2 Senior District Judge.
OPINION
McKEE, Circuit Judge.
David and Jennifer Pardini brought this action on behalf of their minor daughter, “Georgia.” They are appealing the District Court‘s ruling that she was not entitled to continue to receive certain educational/developmental services pursuant to the “stay-put” provision of the Individuals with Disabilities in Education Act, until the dispute over those services is resolved. For the reasons that follow, we will reverse.
I. Factual Background
Georgia Pardini was born on April 18, 2000. She has cerebral palsy, a condition that affects muscular coordination and body movement. Sometime after her first birthday, Georgia began receiving services from the Alliance for Infants and Toddlers (“AIT“) in the form of an Individualized Family Service Plan (“IFSP“) pursuant to the Individuals With Disabilities in Education Act,
The AIU had evaluated Georgia as part of the normal transition from an IFSP to an IEP that is mandated by the IDEA when a child turns three. The District Court found that the Pardinis received the evaluation on March 15, 2003 along with instructions telling them to “Read the report, sign the original, and return in the enclosed envelope within 5 days [and][i]f you disagree with any part of the report, write a statement on a separate piece of paper that describes the items with which you disagree.”
The Pardinis and agents of AIU met on March 24, 2003, but the Pardinis refused to sign the IEP because it did not provide for the conductive education Georgia had been receiving under the IFSP. Rather than sign, the Pardinis requested an independent evaluation and asked AIU to continue all of the services Georgia had been receiving pending the outcome of that evaluation. AIU responded by advising the Pardinis that it would instead seek a due process hearing pursuant to
At the May 1, 2003 IEP meeting, AIU presented a Notice of Recommended Educational Placement (“NOREP“) that included only those services it deemed appropriate; it did not include conductive education. The Pardinis signed noting their objection to the absence of conductive education. The District Court summarized that meeting and AIU‘s refusal to subsequently provide Georgia with any services as follows: “Plaintiffs attended [the] meeting under protest.... AIU refused to offer Plaintiffs a NOREP that included all of the IFSP related services and Plaintiffs signed their objection to AIU‘s NOREP as such. Nevertheless, the AIU has not restarted Georgia‘s IDEA services.” Pardini, 280 F.Supp.2d at 453.
The AIU and the Pardinis could not agree upon Georgia‘s IEP, and the Pardinis refused to sign a NOREP that did not include conductive education. The AIU took the position that it could not provide any services under the circumstances, and it terminated all of Georgia‘s services four days after her third birthday. The Pardinis responded in a letter to AIU in which they objected to AIU‘s actions and demanded that Georgia‘s services be reinstated pursuant to the “stay-put” requirement of
While the due process hearings were proceeding to determine whether “a meaningful and appropriate IEP should include ... conductive education ... or whether the alternatives offered by AIU [were] adequate to insure [Georgia‘s] meaningful progress,” id., the Pardinis filed the instant action in the District Court.4 The Hearing Officer did not specif-
Meanwhile, the state conducted due process hearings on June 10 and June 12, 2003 to determine if AIU was obligated to continue providing the services Georgia had received as part of her IFSP pending the resolution of the disputed IEP, as well as whether the proposed IEP was appropriate. Ultimately, the Dispute Resolution Hearing Officer ruled that AIU was not obligated to continue all of Georgia‘s services under the IFSP. The hearing was then continued to determine whether the Pardinis should receive an independent evaluation.
On August 29, 2003, after conducting a trial, the District Court issued a second opinion in which the court ruled that the Pardinis were not entitled to any relief. The court reasoned that the stay-put provision of the IDEA did not require AIU to provide the identical educational program that AIT had been providing under Georgia‘s IFSP because the AIT was a different program with a different funding stream. The court also concluded that the respective agency, not the parents, had the ultimate responsibility for deciding upon an appropriate educational program for Georgia. This appeal followed.6
II. Discussion
The District Court concluded that the stay-put rule of
A. Statutory Background.
In enacting the IDEA, Congress originally only provided for children with disabilities who were between the ages 5 and 21. However, in 1986, Congress amended the ACT to extend to disabled children who were between three and five years of age. Accordingly,
The program providing services to children beyond their third birthday (“school-aged children“) is referred to as “Part B,” and the program providing services to children between the ages of three and five is known as the “Part B Preschool Program.” Part B defines a “free appropriate public education” as:
[S]pecial education and related services that:
- have been provided at public expense, under public supervision and direction, and without charge;
- meet the standards of the State educational agency;7
- include an appropriate preschool, elementary, or secondary school education in the State involved; and
- are provided in conformity with the individualized education program ...
The IEP is a written statement prepared as the result of consultation among a representative of the local educational agency, the teacher, and the parents, which must contain, statements of: present levels and performance, annual goals and objectives, “specific educational services to be provided[] ..., the extent to which such child will be able to participate in regular educational programs, [] the projected date for initiation and anticipated duration of such services, and ... appropriate evaluation procedures and schedules for determining, ... whether instructional objectives are being achieved“.8 Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 621 (6th Cir.1990).
The issue before us involves the Act‘s provisions for the child during the pendency of disputes involving the child‘s program or placement. At the outset, we referred to
[D]uring 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 such
child, or, if applying for initial admission to a public school, shall, with the consent of the parents ... be placed in the public school program until all such proceedings have been completed.
This “stay-put provision dates back to 1975, when it was enacted as
In 1986, Congress amended the IDEA by adding the “Part C” Program to serve children from birth to age three.
Congress realized that it was important to allow for an overlap of services rather than legislate a rigid and artificial demarcation inconsistent with the reality of early development because “[e]arly intervention research indicated that certain types of services required by infants and toddlers with disabilities are comparable to ... services required by preschoolers with disabilities that are included in their individualized family service plans.” H.R. Rep. at 7.
In enacting the amendments to the IDEA, Congress stressed that the transition from Part C to Part B upon a child‘s third birthday was to be “a smooth transition.” See
Moreover, Congress has clearly recognized that realities dictate that there must often be significant overlap in services provided under Part C and Part B. Thus, Part C funds can be used from the child‘s third birthday to the beginning of the following school year.
The instant dispute over Georgia‘s conductive education is rooted in this administrative demarcation. The Department of Public Welfare recognizes conductive education. The Pennsylvania Department of Education does not recognize it.
B. The Application of the Stay-Put Rule to Georgia‘s Transition.
The Pardinis claim that the congressional concern for a smooth transition to preschool and services under Part B of the IDEA can best be accomplished through a program that includes conductive education. Moreover, since Georgia had been receiving conductive education as part of her IFSP, they claim that it was part of the “current educational placement.” However, the AIU argues that Georgia‘s IEP should not merely mirror the services she was receiving under her IFSP because the IDEA recognizes a developmental, and educational change in focus when a child becomes three and begins preparing for school. The AIU states: “Stay-put does not apply to the initiation of services from Part C to Part B of the IDEA. The programs operate under different agencies, different eligibility requirements, and different purposes. To argue that they are the same is preposterous.” Appellee‘s Br. at 10.
Of course, the issue here is not whether Part C and Part B are the same; they clearly are not. Rather, the issue is whether
In resolving that inquiry against the Pardinis, the District Court relied largely on Johnson v. Special Education Hearing Office, 287 F.3d 1176 (9th Cir.2002). There, parents sought an administrative hearing to challenge an IEP that provided for a change in the vendor that had offered a particular service under their son‘s IEP. The services that were contemplated by the education agency were identical to those that had been offered under their son‘s IFSP before his third birthday. The agency claimed that the vendor could not continue to provide services after a child‘s third birthday, but the agency proposed offering the same services with a different vendor.
In the due process hearings that followed, the Hearing Officer ordered continuation of the placement and services, but concluded the school district “need not utilize the same vendors who provided services under that IFSP.” Id., at 1179. The parents responded by seeking an injunctive order in the District Court requiring the Hearing Officer to “issue a new ‘stay put’ order [forcing the school district] to use the same tutors, vendors, and supervisory services [as those in their son‘s IFSP].” Id. The District Court analyzed the dispute using the customary criteria for resolving claims for injunctive relief. That included an analysis of irreparable harm, and the likelihood of success on the merits. Id. Based upon that analysis, the court denied the request for injunctive relief, and the Court of Appeals affirmed
Here, the District Court concluded that since “Plaintiffs are in the transition process applying for initial services under Part B[], [t]he applicable stay-put placement for a three-year old child is the proposed public school placement and program.” Pardini, 280 F.Supp.2d at 455. Quoting from Johnson, the District Court also held, “[w]hen responsibility transfers from one public agency to another, ‘the new agency is required only to provide a program that is in conformity with the placement in the last agreed upon IEP or IFSP. The new agency need not ... provide the exact same educational program.‘” (internal citation omitted).
We do not disagree with the reasoning in Johnson. However, we believe the District Court misapplied that decision. The parties in Johnson stipulated that the child‘s IFSP constituted “his current educational placement for ‘stay put’ purposes.” 287 F.3d. at 1180, The parties were only disputing whether the identical services had to be provided by the same vendor who had provided them under the IFSP. Thus, to the extent that it applies to our analysis at all, Johnson undermines the District Court‘s focus on the distinction between the developmental needs of children who are less than three, and the educational needs of children who are older than three. The services offered under the IEP in Johnson were identical to those that had been offered under the IFSP.
The District Court cited Johnson in stating: “[w]hen responsibility transfers from one public agency to another, ... ‘the new agency need not, and probably could not, provide the exact same educational program.‘” 280 F.Supp.2d at 456. (quoting Johnson, 287 F.3d at 1181). However, since Johnson did not involve the child‘s entitlement to disputed services during the pendency of a dispute, the case is distinguishable from the circumstances before us. It is important to remember that Congress was concerned with the services and programs offered to handicapped children, not with the vendors supplying them. The District Court‘s failure to recognize that distinction undermines its reliance on Thomas.
Moreover, the District Court‘s error was compounded (or perhaps facilitated) by its reliance upon an analysis more appropriately utilized for ruling upon preliminary injunctions than enforcing the Act‘s stay-put rule. The court reasoned “that Plaintiffs would not be irreparably harmed by refusal to grant the injunction, and that the public interest would be served by permitting the ... proceedings to continue, which would develop a full and meaningful record if further review became necessary.” 289 F.Supp.2d at 452. However, Congress has already balanced the competing harms as well as the competing equities. In Drinker v. Colonial School Dist., 78 F.3d 859, 864 (3d Cir.1996), we explained that the Act “substitutes an absolute rule in favor of the status quo for the court‘s discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a ... balance of hardships.”
Although, as we have noted, the court in Johnson also engaged in a traditional preliminary injunction analysis, that analysis did not involve the stay-put rule. Rather, the Hearing Officer in Johnson had already entered a “stay-put order” under the Act and the parents were asking a court to enjoin that order, not the proposed IEP. The court explained: “Here, the Hearing Officer‘s ‘stay-put’ order preserves the tutors, goals, and plan ... it only changes the plan supervisors.... Thus, the ‘stay put’ order correctly determined [the child‘s] ‘then current education-
In Honig, the Supreme Court rejected school authorities’ claim that, under the circumstances there, proposed changes to a child‘s educational placement must remain in effect until the propriety of the placement was ultimately determined. The Court observed, “[t]he language of
Honig involved two students whose individual cases were consolidated. Both students had engaged in disability-related misconduct. One student had forcefully choked a classmate and then kicked out a school window while being escorted to the principal‘s office. Id., at 313, 108 S.Ct. 592. In both cases, the parents filed suit under the predecessor of the IDEA in an effort to enjoin the school district from expelling their children until appropriate placements and IEPs were agreed upon. Except for the district‘s authority to impose a very brief suspension, the District Court enjoined the school district from unilaterally acting against “any disabled child for disability-related misconduct, or from effecting any other change in the educational placement ... without parental consent pending completion of [due process] proceedings.” Id., at 315, 108 S.Ct. 592. The Court of Appeals affirmed but modified the District Court‘s order to allow for fixed suspensions of up to 30 school days. The court reasoned that the school district retained the authority to take such limited action under the stay-put rule and certain provisions of the state‘s Education Code.
On appeal, the school district asked the Supreme Court to read a ” ‘dangerousness’ exception into the stay-put provision[.]” The Court refused. The Court did not accept the school‘s argument that Congress obviously intended for schools to retain “residual authority to ... exclude dangerous students from the classroom[.]” Id., at 323, 108 S.Ct. 592. The Court did not think it obvious that Congress intended schools or educational agencies to have any such power. Rather, the Court thought it “clear[] ... that Congress very much intended to strip schools of the unilateral authority they had traditionally employed to exclude disabled students ... from school.” Id., at 323, 108 S.Ct. 592 (emphasis in original).10 The Court thus
concluded that the stay-put provision “means what it says.” Id., at 324, 108 S.Ct. 592.
Nor are we convinced by AIU‘s claim that, since this was Georgia‘s initial IEP, it constituted the “current educational placement” for purposes of the stay-put rule. In Drinker, we stressed the importance of maintaining the status quo when identifying “the then current educational placement” for purposes of the stay-put rule. 78 F.3d at 864. We stated:
[I]mplicit in the maintenance of the status quo is the requirement that a school district continue to finance an educational placement made by the agency and consented to by the parent before the ... due process [procedure is invoked]. To cut off public funds would amount to a unilateral change in placement, prohibited by the Act.
Id. (brackets in original) (quoting Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir.1982)).
We are also not persuaded by AIU‘s claim that the demarcation between Part C and Part B of the IDEA, and the administrative and fiscal division of the providers of services offered under those respective programs, counsels against viewing the IFSP as the “current educational placement” under the circumstances of this dispute. This distinction simply can not negate the explicit language of the stay-put provision, Congress‘s concern for the child‘s “smooth transition,” the Supreme Court‘s analysis in Honig or our decision in Drinker. Rather, we think it clear that “[t]he [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, at 865.
Our conclusion is not altered by the fact that Part C programs are deemed “developmental” and part B programs are deemed “educational.” As we explained in Drinker:
Because the [current educational placement] connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute first arises. If an IEP has been implemented, then that program‘s placement will be the one subject to the stay put provision. And where ... the dispute arises before any IEP has been implemented, the current educational placement will be the operative placement under which the child is actually receiving instruction at the time the dispute arises.
Drinker, at 867 (quoting Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir.1990)) (internal quotation marks omitted). Here, it is beyond dispute that Georgia was receiving an IFSP that included conductive education when the dis-
Had Congress intended a prospective IEP to govern the Act‘s stay put provision, as opposed to an operational placement, it could have employed the term “individualized educational program” which it had already defined. Since it did not, the term “then current educational placement” must be accorded, its plain meaning. Because the term connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute first arises ... where, as here, the dispute arises before any IEP has been implemented, the “current educational placement” will be the operative placement under which the child is actually receiving instruction at the time the dispute arises Thomas, 918 F.2d at 625-26.
In addition,
Congress has clearly recognized that needs of disabled children do not fit neatly into the age-defined stages suggested by the AIU. Although Georgia was technically transitioning within the administrative and fiscal structure of IDEA‘s statutory scheme, her needs did not magically change on her third birthday. She still needed substantially the same services she was receiving in the days preceding her birthday. Indeed,
Furthermore, even if we could accept the AIU‘s theory of “development” vs. “education,” we would still be convinced that by the analysis in the cases we have discussed, that the conductive education in Georgia‘s IFSP was part of the status quo that should have been maintained pending resolution of the dispute over her IEP.
OSEP‘s Letter to Klebanoff11
The District Court also relied upon on OSEP‘s Letter to Klebanoff. “[T]he
In Letter to Klebanoff, the OSEP answered an inquiry regarding whether the stay-put provision mandated the continuation of services a three-year old received in the Birth to Three-Year old program when the parents did not agree to the school‘s proposed education program. OSEP responded to the inquiry by stating it did not interpret
In Thomas, an IEP was developed for a severely retarded eleven year old child, but before the services were to begin, doubts about funding caused the school to review the plan. The Court of Appeals held that the IEP could not be the “current educational placement” because it had never been implemented. Likewise, here, the proposed IEP had not been implemented when the dispute over whether it should contain conductive education arose. Rather, Georgia‘s operative placement consisted of the services she was receiving under her IFSP.
III. Conclusion
For the reasons set forth above, we hold that the stay-put provision of the IDEA,
McKEE
Circuit Judge
Notes
We do not think that Mr. Pardini is precluded from recovering reasonable attorneys’ fees otherwise provided for under the IDEA merely because he is seeking reimbursement for his own expenses while representing his daughter. In Zucker v. Westinghouse, 374 F.3d 221, 227 (3d. Cir.2004) we recognized that, absent an expression of congressional intent to the contrary, a plaintiff‘s entitlement to attorneys’ fees is not eliminated merely because he/she was pro se counsel. Although we were there discussing the right of a pro se plaintiff in a shareholder‘s derivative action, that conclusion is not limited to that specific type of action. Since Mr. Pardini requested “such other relief as the Court deems fitting and proper,” in his complaint, he is entitled to recover reasonable attorneys’ fees to the extent that he is the prevailing party.
However, the issue here—the interpretation of