AW v. Fairfax County School Board

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AW,1 by his parents, Debra D. 

Wilson and Christopher D. Wilson,

Plaintiff-Appellant,

v.  No. 03-1181

FAIRFAX COUNTY SCHOOL BOARD,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-02-1215-A)

Argued: January 22, 2004

Decided: June 24, 2004

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in

which Judge Motz and Judge King joined.

COUNSEL

ARGUED: Hunter Craycroft Harrison, Jr., McLean, Virginia, for

Appellant. John Francis Cafferky, BLANKINGSHIP & KEITH, Fair-

1

The court has revised the caption of this appeal in order to protect the

identity of the minor student on whose behalf the underlying action was

filed.

2 AW v. FAIRFAX COUNTY SCHOOL BOARD

fax, Virginia, for Appellee. ON BRIEF: Jennifer L. Redmond,

BLANKINGSHIP & KEITH, Fairfax, Virginia; Thomas J. Cawley,

HUNTON & WILLIAMS, McLean, Virginia, for Appellee.

OPINION

DUNCAN, Circuit Judge:

AW, a disabled student in Fairfax County, Virginia, appeals the

district court’s judgment in favor of the Fairfax County School Board

("FCSB") in his suit under the Individuals with Disabilities Education

Act, 20 U.S.C. §§ 1400-1487 (West 2000 & Supp. 2003) ("the

IDEA"). In his complaint, AW asserted that the FCSB improperly

refused to allow him to enroll at his preferred junior high school after

a pattern of misbehavior in the preceding school year resulted in his

mid-year transfer to an elementary school that sent its students on to

a different junior high school. Specifically, AW alleged that the

FCSB’s transfer decision violated the procedural and substantive pro-

tections afforded him under the IDEA, including its "stay-put" provi-

sion requiring that the student’s "educational placement" not change

while disciplinary proceedings are pending. Because we conclude that

the term "educational placement" as used in the stay-put provision

refers to the overall educational environment rather than the precise

location in which the disabled student is educated, we affirm.

I.

In March 2002, AW was a sixth-grade student assigned to the

"gifted and talented" program (the "GT program") at his elementary

school. During the prior school year, a committee at AW’s school

concluded that AW was eligible to receive special education assis-

tance under the IDEA as a student with an emotional disability. That

determination resulted in the formulation of an Individualized Educa-

tional Program ("IEP") for AW that devoted one hour of each school

week to specialized education intended to alleviate AW’s "difficulty

maintaining focus and completing academic tasks as required" and

avoidance of "many tasks, especially when they involve writing." J.A.

135. AW successfully completed the remainder of his fifth-grade

AW v. FAIRFAX COUNTY SCHOOL BOARD 3

year, and his IEP was revised the following year in accordance with

IDEA procedure.

As a sixth-grader, AW began exhibiting behavior problems he had

not displayed during the first year of his IDEA program. These disci-

plinary issues culminated in a March 2002 incident in which AW per-

suaded another student to place a threatening note in the computer file

of a student that AW disliked.2 In the ensuing inquiry, AW admitted

that his intent was to scare the targeted student away from school.

Based on his admission and past behavioral problems, school admin-

istrators suspended AW from school for two school weeks and initi-

ated proceedings to expel AW.

As required by the IDEA, school officials convened a Manifesta-

tion Determination Review ("MDR") committee in order to determine

the extent to which AW could be disciplined. Under the IDEA, a dis-

abled student may not be disciplined by his school unless an MDR

committee concludes that the student’s IEP was appropriate relative

to his qualifying disability and that the student’s disability did not

inhibit his capacity either to appreciate that his behavior was inappro-

priate or to conform his behavior to expectations. See 20 U.S.C.

§ 1415(k)(4) (2000). On the ninth day of AW’s suspension, the MDR

committee concluded that AW’s IEP appropriately compensated for

his emotional disability and that AW’s disability did not prevent him

from either understanding that his actions violated school rules or

behaving appropriately. This finding opened the door for the FCSB

to discipline AW as it would any other student. See 20 U.S.C.

§ 1415(k)(5) (2000). The following day, however, a FCSB adminis-

trator rejected the expulsion recommendation from the administrators

of AW’s school and directed instead that AW be transferred to the GT

program at another FCSB elementary school for the remainder of the

school year. It is undisputed that AW would continue to receive the

one hour per week of special education at this new location.

Despite the transfer determination, AW returned to his original

school at the conclusion of his suspension to complete the final week

of school before spring break. During this week, AW continued to

2

That message, which appeared anonymously in the targeted student’s

account, read "DEATH AWAITS YOU."

4 AW v. FAIRFAX COUNTY SCHOOL BOARD

receive GT program course work but was separated from his class and

assigned instead to an empty classroom. As the week drew to a close,

AW’s parents invoked their right under the due process procedures of

the IDEA to a review of the MDR determination. The appointed due

process review officer ("DPR Officer") issued a pre-hearing decision

staying the FCSB administrator’s transfer decision, and AW returned

to his original school following spring break.

At the April 17, 2002 hearing regarding the MDR committee’s

findings, AW’s psychologist testified that AW had Attention Deficit

Hyperactivity Disorder ("ADHD") and Oppositional Defiance Disor-

der ("ODD"). AW’s psychologist opined that AW’s IEP failed to ade-

quately compensate for ODD and that AW’s combination of

conditions figured prominently in the behavior for which he was dis-

ciplined. Nevertheless, the DPR Officer concluded that the MDR

committee’s conclusion was sound and that the FCSB could transfer

AW to a nearby school with a comparable GT program, based in part

on his conclusion that the evidence did not support the findings of

AW’s psychologist. The DPR Officer’s order released the FCSB to

transfer AW to another elementary school located approximately five

miles away from AW’s original school, and AW completed his sixth-

grade year at that school.

Following their unsuccessful attempts to enroll AW at the junior

high he would likely have attended but for his transfer, AW’s parents

filed the complaint in this case on AW’s behalf on August 16, 2002.

The complaint alleged that the FCSB violated the IDEA’s "stay-put"

provision by transferring AW despite the ongoing challenge to the

MDR committee’s determination under the IDEA’s review proce-

dures, and that the MDR committee erred in concluding that AW

could be disciplined as any other student. The district court granted

judgment in favor of the FCSB, and AW timely appealed.

II.

This Court reviews the district court’s interpretation of the IDEA

de novo. Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003).

When a district court reviews a state administrative decision under the

IDEA, that court must make an "independent decision based on a pre-

ponderance of the evidence." Doyle v. Arlington County Sch. Bd., 953

AW v. FAIRFAX COUNTY SCHOOL BOARD 5

F.2d 100, 103 (4th Cir. 1991). In doing so, however, the court must

accord the administrative findings "due weight," as "the primary

responsibility for formulating the education to be accorded a handi-

capped child, and for choosing the educational method most suitable

to the child’s needs, was left by the IDEA to state and local educa-

tional agencies in cooperation with the parents or guardian of the

child." Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 663 (4th

Cir. 1998) (internal quotation marks and alterations omitted).

The IDEA confers upon disabled students substantive and proce-

dural rights that ensure the child’s right to "public education in partic-

ipating States." Honig v. Doe, 484 U.S. 305, 310 (1988).

Substantively, the IDEA requires participating states to provide all

disabled children with a free appropriate public education ("FAPE")

as a condition to the receipt of federal funds. See 20 U.S.C.

§§ 1400(d)(1)(A), 1412(a)(1) (2000).3 As an adjunct to this require-

ment, school officials must create an IEP for each qualifying child to

ensure that the school district is properly discharging this obligation

with respect to each disabled student. See 20 U.S.C.

§ 1414(d)(1)(2000). Procedurally, the IDEA "guarantee[s] parents

both an opportunity for meaningful input into all decisions affecting

their child’s education and the right to seek review of any decisions

they think inappropriate." Honig, 484 U.S. at 311-12. This includes

the "opportunity to present complaints with respect to any matter

relating to the identification, evaluation, or educational placement of

the child." 20 U.S.C. § 1415(b)(6)(2000)(emphasis added).4

AW presents two issues in this appeal. First, AW asserts that his

mid-year transfer by the FCSB violates the "stay-put" provision of the

IDEA, 20 U.S.C. § 1415(j)(2000), as the due process review guaran-

teed to AW’s parents under the IDEA was still proceeding. Second,

AW challenges the substantive determination by the MDR committee

that allowed the FCSB to discipline AW in the same manner as any

non-disabled student. We consider each issue in turn.

3

A FAPE constitutes an education that is specifically designed "to

meet the unique needs of the [disabled] child, supported by such services

as are necessary to permit the child to benefit from the instruction." Todd

v. Duneland Sch. Corp., 299 F.3d 899, 905 (7th Cir. 2002).

4

See also Honig, 484 U.S. at 312 (discussing prior version of section).

6 AW v. FAIRFAX COUNTY SCHOOL BOARD

III.

The first issue raised by AW in this appeal is whether the FCSB’s

decision to transfer him mid-year to the GT program at another school

violated the "stay-put" provision of the IDEA. This provision man-

dates that "during the pendency of any proceedings conducted pursu-

ant to this section, . . . the child shall remain in the then-current

educational placement of such child," absent the consent of school

officials and the parents. Id. (emphasis added). AW argues that the

term "educational placement" encompasses not simply the particular

school to which the student is assigned, but the very classroom in

which he or she receives his or her instruction. According to AW, the

"stay-put" provision thus requires the FCSB to keep him not only in

the GT program, but to keep him in the specific GT program class-

room to which he was originally assigned. In response, the FCSB

argues that "educational placement" cannot have so specific a defini-

tion. The FCSB maintains that the "stay-put" provision protects

against a change in overall educational environment, rather than phys-

ical location. We must therefore determine what Congress meant by

the term "educational placement" and whether the FCSB’s transfer of

AW constituted a change in his then-current educational placement.

A.

In interpreting a statute, we start with the text of the provision at

issue, which here states that school officials may not change a stu-

dent’s "then-current educational placement" while disciplinary pro-

ceedings are pending. 20 U.S.C. § 1415(j). By mandating that the

student’s "educational placement" remain undisturbed for the duration

of any proceedings related to the disciplinary decision, the "stay-put"

provision circumscribes school officials’ ability to unilaterally disci-

pline students covered by the IDEA. See Erickson v. Albuquerque

Public Schs., 199 F.3d 1116, 1121 (10th Cir. 1999); Susquenita Sch.

Dist. v. Raelee S. ex rel. Heidi S., 96 F.3d 78, 83 (3d Cir. 1996). How-

ever, "[n]either the statute nor the legislative history provides guid-

ance for a reviewing court on how to identify ‘the then current

educational placement.’" Ms. S. ex rel. G. v. Vashon Island Sch. Dist.,

337 F.3d 1115, 1133 n.22 (9th Cir. 2003) (internal quotation marks

omitted) (quoting Drinker ex rel. Drinker v. Colonial Sch. Dist., 78

F.3d 859, 865 n.13 (3d Cir. 1996)). Indeed, the IDEA does not define

AW v. FAIRFAX COUNTY SCHOOL BOARD 7

the term "educational placement." Erickson, 199 F.3d at 1121. While

undefined terms in a statute must be given their ordinary meaning,

Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995), and the

terms "educational" and "placement" do have such definitions, it is

clear that Congress intended these words to be construed together as

a term of art. Hence, a recitation of the ordinary meaning of these

independent terms is of little utility. Cf. In re S. Star Foods, Inc., 201

B.R. 291, 293 (Bankr. E.D. Okla. 1996) (noting that an undefined

term of art that may be read narrowly or broadly is ambiguous).

Judicial construction of the term "educational placement" has gen-

erally failed to provide significant clarification. Rather, courts have

alternatively defined the term narrowly or broadly depending on the

circumstances. Thus, for example, educational placement has been

found to refer to anything from "the physical school attended by a

child [to] the abstract goals of a child’s IEP" in varying contexts. Bd.

of Educ. v. Ill. State Bd. of Educ., 103 F.3d 545, 548-549 (7th Cir.

1996) (collecting cases).5 We do not find such an elastic approach to

provide guidance here.6

5

At least one court has attempted to synthesize these definitions by

stating that

[a] transfer to a different school building for . . . reasons unre-

lated to the disabled child has generally not been deemed a

change in placement, whereas an expulsion from school or some

other change in location made on account of the disabled child

or his behavior has usually been deemed a change in educational

placement that violates the stay-put provision if made unilater-

ally.

Hale ex rel. Hale v. Poplar Bluffs R-I Sch. Dist., 280 F.3d 831, 834 (8th

Cir. 2002). However, courts like Hale have reached such conclusions in

the context of expulsions and similar changes in location that result in the

denial of educational services altogether.

6

On occasion, of course, the Supreme Court has concluded that it is

appropriate to allow the definition of a statutory term to be defined by

the factual context in which it is to be applied. In Commissioner v.

Groetzinger, the Court declined to adopt a universal definition of "trade

or business" under the Internal Revenue Code due to "the Code’s wide

utilization in various contexts of the term ‘trade or business,’ in the

absence of an all-purpose definition" and the concern that "an attempt

8 AW v. FAIRFAX COUNTY SCHOOL BOARD

The Supreme Court, however, has indirectly provided insight into

the definition of "educational placement" through its discussions of

the proper application of the "stay-put" provision. In discussing pre-

cursors to the current "stay-put" provision, the Court has twice indi-

cated that its purpose was to "prevent school officials from removing

a child from the regular public school classroom over the parents’

objection pending completion of the review proceedings." Sch.

Comm. v. Dep’t of Educ., 471 U.S. 359, 373 (1985); see also Honig,

484 U.S. at 323 (noting the "stay-put" provision was intended "to strip

schools of the unilateral authority they had traditionally employed to

exclude disabled students, particularly emotionally disturbed students,

from school" (second emphasis added)).

The Court has also indicated that the IDEA was not intended to

"leave educators hamstrung." Id. at 325. To that end, the Court has

held that the "stay-put" provision is not so limiting as to prevent

school officials from resorting to temporary changes short of exclu-

sion, including "the use of study carrels, timeouts, detention, or the

restriction of privileges." Id. According to the Court, such options

constitute only minor departures from prior assignments and "do[ ]

not carry the potential for total exclusion that Congress found so

objectionable." Id. at 325-26 & n.8. Thus, any definition of "educa-

tional placement" must reflect the fact that the "stay-put" provision is

not implicated by temporary changes that track previous assignments

as closely as possible and do not affect a student’s FAPE.7 See United

judicially to formulate and impose a test for all situations would be coun-

terproductive, unhelpful, and even somewhat precarious for the overall

integrity of the Code." 480 U.S. 23, 36 (1987). Nevertheless, we are not

persuaded that multiple definitions of the same term are necessary in this

context, and the parties have failed to indicate a basis from which to con-

clude that Congress intended a definition of "educational placement" that

is predicated on the factual context in which its application arises.

Although the terms underlying the IDEA’s statutory scheme "tend[ ]

toward the cryptic rather than the comprehensive, . . . that is scarcely a

reason for abandoning the quest for legislative intent." Bd. of Educ. v.

Rowley, 458 U.S. 176, 188 (1982).

7

Other provisions in the IDEA beyond the "stay-put" provision reflect

Honig’s influence. In particular, § 1415(k)(1) notes that a school offi-

AW v. FAIRFAX COUNTY SCHOOL BOARD 9

States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (noting that it may

be presumed that Congress "acts with knowledge of existing law, and

that absent a clear manifestation of contrary intent, a newly-enacted

or revised statute is presumed to be harmonious with existing law and

its judicial construction" (internal quotation marks omitted)).

The foregoing "stay-put" jurisprudence indicates that the provision

is certainly violated by a change in location that leads to an outright

denial of educational services. However, the Supreme Court has clari-

fied that temporary changes in location do not violate the "stay-put"

provision provided they do not result in a diminution of the educa-

tional services to which the student is entitled. Since the circum-

stances of AW’s transfer do not fall into either category, resolution

of this appeal requires a clearer definition of the term "educational

placement."

B.

Because the IDEA does not define "educational placement" and, as

a term of art, the term lacks an ordinary meaning, we must examine

cial’s decision to temporarily assign a student to an "interim alternative

educational setting [or] another setting," or to suspend the student, con-

stitutes an explicitly authorized "change in the placement of a child with

a disability." 20 U.S.C. § 1415(k)(1)(A)(i) (2000). This provision tracks

the holding in Honig: that school officials may resort to temporary sus-

pensions or lesser disciplinary measures without effecting a change in the

student’s "educational placement." 484 U.S. at 325. Although the IDEA

does not define "placement" or "setting" either, it uses these terms in the

context of a disciplinary provision which places them in contradistinction

to a student’s educational environment prior to being disciplined. See

§ 1415(k)(1)(A)(i). The least dramatic departure from the student’s envi-

ronment authorized by the IDEA is an assignment to an "interim alterna-

tive educational setting," which the IDEA describes as a setting that

allows the student to continue his educational program without interrup-

tion. See §§ 1415(k)(1)(A)(i), (3)(B)(i). At the other end of the spectrum

is suspension, an option which permits the school to deny the student

access to both his or her regular educational program and the school

itself. Thus, a change in "placement" occurs when a school places the

student in a setting that is distinguishable from the educational environ-

ment to which the student was previously assigned.

10 AW v. FAIRFAX COUNTY SCHOOL BOARD

the IDEA to distill a definition that "can most fairly be said to be in

the statute, in the sense of being most harmonious with its scheme and

with the general purposes that Congress manifested." Comm’r v.

Engle, 464 U.S. 206, 217 (1984) (internal quotation marks omitted).

Toward that end, we note that the IDEA rests on two primary prem-

ises: that all disabled students receive a FAPE and that each disabled

student receive instruction in the "least restrictive environment"

("LRE") possible. See, e.g., Bd. of Educ. v. Rowley, 458 U.S. 176,

180-82 (1982) (discussing precursor to the IDEA); Bd. of Educ. v. Ill.

State Bd. of Educ., 184 F.3d 912, 915 (7th Cir. 1999) (discussing 34

C.F.R. § 300.550 (2003)).

As noted above, the FAPE requirement addresses the substantive

content of the educational services the disabled student is entitled to

receive under the IDEA. The LRE requirement reflects the IDEA’s

preference that "[t]o the maximum extent appropriate, children with

disabilities, including children in public or private institutions or other

care facilities, are educated with children who are not disabled." See

20 U.S.C. § 1412(a)(5) (2000); 34 C.F.R. § 300.550(b)(1). However,

this preference for "mainstreaming" disabled students is not absolute;

§ 1412(a)(5) permits the delivery of educational services to disabled

students in less integrated settings as necessitated by the student’s dis-

ability. A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 330 (4th Cir.

2004).

Although the foregoing indicates that the definition of "educational

placement" should reflect the "mainstreaming" ideal of the LRE

requirement, it does not appear that the term also includes the precise

physical location where a disabled student is educated. The LRE

requirement directs that the disabled student be assigned to a setting

that resembles as closely as possible the setting to which he would be

assigned if not disabled. See Rowley, 458 U.S. at 202-03 & n.24. The

IDEA’s concern with location thus focuses on the degree to which

any particular assignment segregates a disabled student from non-

disabled students, rather than on the precise location of the assign-

ment itself. Given the IDEA’s concern with "mainstreaming" and

appropriate educational content, we find little support in the IDEA’s

underlying principles for AW’s assertion that "educational placement"

should be construed to secure his right to attend school in a particular

classroom at a particular location.

AW v. FAIRFAX COUNTY SCHOOL BOARD 11

C.

The IDEA’s emphasis on educational content and instructional

environment are reflected in the regulations promulgated by the

Department of Education. Indeed, in a recent case, the parents of a

disabled student challenged the school district’s decision to transfer

their disabled child to another school as violative of the IDEA’s "stay-

put" provision by citing 34 C.F.R. § 300.552 (2003), which provides

criteria for determining a disabled student’s "‘educational place-

ment.’" White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d

373 at 379-80 (5th Cir. 2003). Noting the directive in § 300.552 that

the "placement" assignment be "as close as possible to the child’s

home" and that the child be "educated in the school that he or she

would attend if nondisabled," the parents argued that "educational

placement" extends to the particular building to which their child was

assigned. 343 F.3d at 379-80.

As noted by the White court, however, another provision in the reg-

ulations undercuts this interpretation and suggests that the regulations

continue the IDEA’s concern with the extent to which any particular

assignment reflected the "mainstreaming" ideal, rather than the pre-

cise location of that assignment. Section 300.551 describes different

"placement" options that school boards must make available to dis-

abled students, including "regular classes, special classes, special

schools, home instruction, and instruction in hospitals and institu-

tions." 34 C.F.R. § 300.551 (2003). Noting that these options were

differentiated from each other by the extent to which they departed

from a "mainstream" assignment, the court concluded that the term

"placement" as used in the regulations refers only to the setting in

which the student is educated, rather than the precise location. See

343 F.3d at 380. To the extent § 300.552(b) states that school officials

shall ensure that the placement "is as close as possible to the child’s

home," this language does not mandate that the student be assigned

to the closest school, but simply to one that is as "close as possible."8

8

At argument, counsel for AW argued that the school officials and

hearing officer in question lacked the authority to transfer AW during the

school year, apparently relying on 8 Va. Admin. Code § 20-80-68(C)

(2001). While we are aware of cases holding that "state standards that

12 AW v. FAIRFAX COUNTY SCHOOL BOARD

Consideration of the structure and the goals of the IDEA as a

whole, in addition to its implementing regulations, reinforces our con-

clusion that the touchstone of the term "educational placement" is not

the location to which the student is assigned but rather the environ-

ment in which educational services are provided. To the extent that

a new setting replicates the educational program contemplated by the

student’s original assignment and is consistent with the principles of

"mainstreaming" and affording access to a FAPE, the goal of protect-

ing the student’s "educational placement" served by the "stay-put"

provision appears to be met. Likewise, where a change in location

results in a dilution of the quality of a student’s education or a depar-

ture from the student’s LRE-compliant setting, a change in "educa-

tional placement" occurs.9

D.

In light of our conclusion that "educational placement" fixes the

overall instructional setting in which the student receives his educa-

tion, rather than the precise location of that setting, we conclude that

AW’s transfer between such materially identical settings does not

implicate the "stay-put" provision of § 1415(j). See White, 343 F.3d

at 380. The parties do not dispute that the GT program at the nearby

elementary school to which the FCSB transferred AW was materially

identical in its educational offerings and that AW would be placed in

an identical setting (a regular GT program classroom). Moreover,

there is nothing in the record to suggest that the new location selected

impose a greater duty to educate disabled children," if consistent with

federal standards, "are enforceable in federal court under the IDEA,"

Erickson, 199 F.3d at 1122 (internal quotations omitted), § 20-80-68(C)

addresses "[l]ong-term removals" and, as noted above, the transfer did

not constitute a removal from AW’s setting.

9

We recognize the possibility that a transfer to a different school might

entail a commute so long or arduous as to negatively impact the student’s

ability to excel in the otherwise identical setting. However, we are not

confronted by this issue in this appeal. The materials provided by the

parties indicate that the schools at issue are separated by less than five

miles; the school to which AW was transferred is less than two miles far-

ther away from his home.

AW v. FAIRFAX COUNTY SCHOOL BOARD 13

for AW by the FCSB would work such a change in the student’s rou-

tine that the new location cannot fairly be described as an identical

setting.10

We note further that our interpretation of "educational placement"

would not change the result of the cases on which AW relies. The

numerous cases cited by AW reached their conclusions in the context

of a clear change in setting under the definition described above, such

as an indefinite expulsion. See, e.g., Honig, 484 U.S. at 312 (two

emotionally disturbed students expelled indefinitely); Sch. Bd. of

Prince William County v. Malone, 762 F.2d 1210, 1212 (4th Cir.

10

In his brief, AW notes that his February 2002 IEP, implemented just

days before the incident for which he was suspended, states that AW

"will be attending the GT center at Kilmer [Middle School]," the school

to which he would likely have continued, "in 7th grade." J.A. 158. We

are not persuaded that AW’s characterization of this statement as control-

ling of his future placement is correct, however. As a threshold matter,

the IDEA only requires that an IEP specify the location where the stu-

dent’s special education and related services are to be received, not

where the student pursues his general educational program. See

§ 1414(d)(1)(A)(vi). Given that there are separate statutory and regula-

tory provisions regarding "placement," including provisions suggesting

that the IEP and placement issues are separate and successive consider-

ations, see, e.g., 34 C.F.R. § 300.300(a)(3)(ii) (stating that placement

decisions should be made based on the child’s "unique needs"); 34

C.F.R. pt. 300, app. A (noting that "[t]he appropriate placement for a par-

ticular child . . . cannot be determined until after decisions have been

made about the child’s needs and the services that the public agency will

provide"), we find it incongruous to conclude that any statement in a cur-

rent IEP regarding future placement should be controlling. Second,

AW’s February 2002 IEP was superseded in April when AW’s IEP team

reconvened in the wake of AW’s suspension as required by § 1415(k)

and instituted a revised IEP that omitted any reference to future place-

ment. Although AW’s parents indicated their dissatisfaction with AW’s

April IEP by declining to sign it, the right conferred by the IDEA on par-

ents to participate in the formulation of their child’s IEP does not consti-

tute a veto power over the IEP team’s decisions. See White, 343 F.3d at

380 (collecting cases). Third, our review of the materials in the joint

appendix reveals no other basis to conclude the FCSB could not unilater-

ally elect to deny AW enrollment at the junior high of his choice had the

March 2002 incident not occurred.

14 AW v. FAIRFAX COUNTY SCHOOL BOARD

1985) (expulsion for remainder of school year); Kaelin v. Grubbs, 682

F.2d 595, 598 (6th Cir. 1982) (expulsion for remainder of school

year); S-1 v. Turlington, 635 F.2d 342, 348 (5th Cir. 1981)

("[E]xpulsion is still a proper disciplinary tool under the (Education

for all Handicapped Children Act) . . . when proper procedures are

utilized and under proper circumstances."), abrogated on other

grounds by Honig, 484 U.S. at 317; cf. Hale, 280 F.3d at 832 (transfer

from home schooling to a school). Under our interpretation of "educa-

tional placement," such actions would still violate the "stay-put" pro-

vision as they constitute clear and permanent changes in setting.

Because the FCSB’s decision to change the location of AW’s assign-

ment did not result in a change in educational setting, we find the

transfer decision did not violate the "stay-put" provision.11

IV.

AW’s substantive challenge to the FCSB’s transfer decision

addresses the adequacy of the MDR committee’s determination that

his disability did not factor into the conduct for which he was sus-

pended. As noted above, the IDEA requires that before any school

can discipline a student, the school must determine whether the stu-

dent’s misconduct is related to the student’s disability. If it is, the

school officials are confined to the limited disciplinary measures

11

Finally, even if the "stay-put" provision were violated here, the cir-

cumstances of this case appear to foreclose the possibility of relief. At

the time of the transfer in April 2002, AW was just months away from

graduating from sixth grade and moving on to the seventh grade at

another school. While the "stay-put" provision does remain in effect until

the conclusion of both administrative and judicial review, including this

appeal and any subsequent review by the Supreme Court, Verhoeven v.

Brunswick Sch. Comm., 207 F.3d 1, 6 (1st Cir. 1999), it would be

unworkable at this juncture to return AW to his "then-current educational

placement" as defined in his brief. AW does not seek to use the "stay-

put" provision, as he interprets it, to return to his educational placement

as it existed prior to his transfer: his sixth-grade classroom at his original

school. Rather he seeks to return to the junior high school track that

would have flowed from the earlier assignment. However, AW would

have been subject to the transfer at the conclusion of the review process,

making the junior high school track applicable to the school to which he

was ultimately transferred the appropriate one.

AW v. FAIRFAX COUNTY SCHOOL BOARD 15

described in § 1415(k)(1)(A)(i). However, if the MDR committee

concludes that the child’s disability did not factor into the student’s

conduct, then the school may discipline that student as it would any

other. See § 1415(k)(5).

The issues the MDR committee must consider are clearly defined

by the IDEA. The MDR committee must gather "all relevant informa-

tion," including any "evaluation or diagnostic results," any "observa-

tions of the child," and "the child’s IEP and placement." See

§ 1415(k)(4)(C)(i). The MDR committee must then decide whether:

(1) "the child’s IEP and placement were appropriate and the special

education services . . . were provided consistent with the child’s IEP

and placement"; (2) the child’s disability impaired his ability to

understand "the impact and consequences of the behavior subject to

disciplinary action"; and (3) the child’s disability impaired his ability

"to control the behavior subject to disciplinary action."

§ 1415(k)(4)(C)(ii).

The parties disagree as to the nature of AW’s disability. Although

it is undisputed that AW suffers from ADHD and ODD, the hearing

officer and district court concluded that these disorders did not figure

in the "emotional disability," J.A. 72, that rendered AW eligible for

special education under the IDEA. The hearing officer and district

court concluded instead that these conditions constituted "social mal-

adjustment," id., which was not a basis for coverage under the IDEA,

and therefore the MDR committee need not have inquired whether

these conditions impacted the adequacy of AW’s IEP or his conduct.

Based on our review of the record, we conclude the MDR commit-

tee’s conclusion was sound, although for slightly different reasons

than relied on by the district court. AW’s IDEA eligibility form is

only marginally instructive, as it states that AW is eligible based on

his "difficulties maintaining focus and completing academic tasks as

required" and avoiding "many tasks, especially when they involve

writing." J.A. 135. Additionally, the form notes that "Social Malad-

justment has been ruled out as the PRIMARY cause of identified

characteristics," id., but does not exclude the possibility that it plays

a secondary role in his qualifying disability.

A psychological and educational evaluation conducted in Decem-

ber 2000, however, indicates that while ADHD was a central feature

16 AW v. FAIRFAX COUNTY SCHOOL BOARD

of the emotional disability that qualified AW for special education

services under the IDEA, ODD was not. In that evaluation, a psychol-

ogist at AW’s elementary school concluded that AW’s primary diffi-

culty was his inability to concentrate and hyperactivity, two

undisputed symptoms of ADHD. Although the evaluation also noted

AW’s tendency towards "frequent confrontations with authority fig-

ures," and that "[t]his behavioral pattern may also lead to difficulties

relating to peers at times," id. at 171 (emphasis added), the evaluation

nevertheless makes clear that AW’s primary difficulty was behavior

associated with ADHD that hampered his ability to thrive education-

ally. The psychologist concluded that "structure, consistency, predict-

ability, and immediate feedback are critical in the development of any

plan to address difficulties related to attention, impulsivity and con-

centration," and recommended that due to AW’s hyperactivity,

"teachers [should] consider a variety of modifications in his school

program," which would apparently include the very special education

services subsequently implemented through AW’s IEP. Id. at 173

(emphasis added). By contrast, with respect to AW’s "interpersonal

and emotional difficulties," the evaluation concluded that outside

counseling should be encouraged. Id. This evaluation strongly sug-

gests that ADHD figured prominently in AW’s qualifying disability,

but ODD did not.

We therefore find no error in the MDR committee’s conclusion that

AW’s IEP and placement in a general curriculum GT program was

appropriate, and that his ADHD did not figure into the behavior for

which he was to be disciplined. With respect to the adequacy of AW’s

IEP, we note that the IEPs of February 2001 and February 2002

focused on the complications occasioned in AW’s schoolwork by his

ADHD and identified his "social/emotional" difficulties as a matter

for out-of-school counseling with a private counselor. This approach

conforms to the recommendations made by the school psychologist in

his evaluation of AW just prior to AW’s IDEA eligibility determina-

tion. Moreover, nothing in the IEPs or the school psychologist’s eval-

uation suggests that AW’s interpersonal difficulties were so

substantial that they could not be managed by outside counseling or

that they would be exacerbated by being placed in the general GT cur-

riculum with other students.

We likewise find no basis in the administrative record to conclude

that ADHD figured into the conduct for which AW was disciplined.

AW v. FAIRFAX COUNTY SCHOOL BOARD 17

It is undisputed that AW is an intelligent student, and that AW was

not only aware of the consequences of sending the threatening mes-

sage to the targeted student, but anticipated them by enlisting another

student to actually place the note. To the extent that students with

ADHD may be described as impulsive, the circumstances of the con-

duct for which AW was disciplined indicated forethought and investi-

gation, as he had to figure out a way to gain access to his target’s

personal folder. Given these circumstances, we find no error in the

MDR committee’s conclusion that AW’s IEP and placement were

appropriate to his ADHD, and that his ADHD did not figure into the

conduct for which he was disciplined by the FCSB.

V.

Because we find that the specific location where the student is

being educated is not controlling in a determination of educational

placement in this context, and that the MDR committee’s evaluation

was appropriate given the nature of AW’s disability, we find no error

in the reasoning of the DPR Officer or the district court. Accordingly,

the district court’s order is

AFFIRMED.