Stay-Put for Transfer Students KingSpry

Third Circuit Opens the Door to an Exception to Stay-Put in the Case of Transfer Students

Photo of Timothy E. Gilsbach

Posted on December 14th, 2015
by Timothy E. Gilsbach

In an interesting case out of the Third Circuit Court of Appeals, the Court, in an unpublished decision, creates a narrow exception to the pendency or stay-put requirements when a parent files for Due Process under the IDEA.  In the case of J.F. v. Byram Township Board of Education, the Court found that when a student moves to a new school district and the parent then files for due process, the regulations related to a transfer from one district to another and not the pendency regulations apply to what the new district must do. 

While this exception appears to be very narrow, it does give some guidance to a receiving district on which regulation they must follow, and may give them more leeway in determining how to implement the existing IEP under these circumstances.

About The Case

The IDEA, “provides that during the pendency of a due process petition, unless there is an agreement otherwise, ‘the child shall remain in the then-current educational placement.’” However, the IDEA also provides that when a student transfers to a new school district, the new district must provide “comparable services” in the existing IEP until the new district develops its own IEP.

In looking at these two provisions, the Third Circuit found that the second provision applied when the parents moved and then filed for due process for transfer students. Interestingly, the rationale behind this decision was that the change was due to the parents’ decision to move districts and not due to any action of the district.

In J.F., the prior district agreed to place the child in a private school and parents sought an order requiring the new district to keep the student at that private school under IDEA’s stay-put provision.  However, the court found that the new district was only obligated to provide comparable services and did not have to provide the services in the identical location as the prior district.

Bottom Line

As a result of the Court’s decision, a receiving school district that is looking at transferring in a new student as well as pending due process would appear to be bound only by the transfer regulations, which appear to set a lower standard, rather than the pendency requirements and, as a result is less bound by the decisions of the prior district.

If you have any questions about this issue, please contact your legal counsel or one of the Special Education attorneys at KingSpry.

School Law Bullets are a publication of the school law attorneys of KingSpry’s Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.