Michael C. Ex Rel. Stephen C. v. Radnor Township School District

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

1-14-2000

Michael C. v Radnor Twp. Sch. Dist

Precedential or Non-Precedential:

Docket 99-1124

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Filed January 14, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1124

MICHAEL C., A MINOR BY HIS PARENT

AND NEXT FRIEND, STEPHEN C.;

STEPHEN C., INDIVIDUALLY, AND ON

HIS OWN BEHALF

v.

THE RADNOR TOWNSHIP SCHOOL DISTRICT;

PENNSYLVANIA DEPARTMENT OF EDUCATION

Michael C.; Stephen C.,

Appellants

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civ. No. 98-cv-04690)

District Judge: Honorable Charles R. Weiner

Argued: November 2, 1999

Before: NYGAARD, MCKEE and ROSENN, Circuit Judges.

(Filed: January 14, 2000)

Dennis C. McAndrews, Esq. (Argued)

Suite 130

150 Strafford Avenue

Wayne, PA 19087

Counsel for Appellants

Michael C. and Stephen C.

Rosemary E. Mullaly, Esq. (Argued)

Sweet, Stevens, Tucker & Katz, LLP

116 East Court Street

P.O. Box 150

Doylestown, PA 18901

Counsel for Appellee

Radnor Township School District

Calvin R. Koons, Esq. (Argued)

D. Michael Fisher, Esq.

John G. Knorr, III, Esq.

Office of Attorney General

Appellate Litigation Section

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellee

Pennsylvania Department

of Education

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal has its genesis in social legislation enacted

by Congress designed to encourage states to provide

meaningful education to individuals with disabilities. The

specific question before us is whether the Individuals with

Disabilities Education Act ("IDEA"), 20 U.S.C.S 1400 et

seq., requires a Pennsylvania school district to provide a

student with disabilities who relocates from another state

with an interim educational program identical to the

program the student received in his or her prior state of

residence. Michael C., a student with disabilities, attended

a private school in Washington, D.C. under an

Individualized Education Plan ("IEP") formulated by

Washington educational authorities. Michael and his father

moved from Washington to Radnor Township, Pennsylvania

in the summer of 1997, and requested special educational

treatment from the Radnor Township School District

("Radnor"). Radnor responded with specific educational

proposals but Michael's father rejected them, and

2

unilaterally placed Michael in a private school. Michael

remained in this school for 41 days, after which his family

again moved, this time to New Jersey.

Michael's father later initiated administrative proceedings

seeking reimbursement for tuition costs incurred while

Michael attended the private school in Pennsylvania. After

unsuccessfully pursuing his administrative remedies,

Michael's father filed this action in the United States

District Court for the Eastern District of Pennsylvania

against Radnor and the Pennsylvania Department of

Education ("PDE"), seeking tuition reimbursement and

claiming violations of the IDEA, 20 U.S.C. S 1415(j), the

Rehabilitation Act, 29 U.S.C. S 794, and the Civil Rights Act

of 1871, 42 U.S.C. S 1983. He also claimed that Michael's

and his family's right to travel interstate under the

Fourteenth Amendment to the United States Constitution

had been violated. On cross-motions for summary

judgment, the district court entered summary judgment in

favor of Radnor and PDE as to all claims. The court also

granted PDE's separate motion for dismissal of theS 1983

claim as to it based on Eleventh Amendment immunity.

This timely appeal followed.1 We will affirm.

I.

The facts of this case are undisputed. Michael, 17 years

old at the time events relevant to this case occurred, is

learning disabled and suffers from severe hemophilia. Prior

to August 1997, Michael and his father lived in Washington

D.C. Pursuant to the IDEA, Washington public educational

authorities had developed an IEP2 for Michael.3 This IEP

_________________________________________________________________

1. The district court had subject matter jurisdiction over this case

pursuant to 20 U.S.C. S 1415(i) (formerly 20 U.S.C. S 1415(e)) and 28

U.S.C. SS 1331 and 1343. We have appellate jurisdiction pursuant to 28

U.S.C. S 1291.

2. The IEP is the "centerpiece" of the IDEA. See Honig v. Doe, 484 U.S.

305, 311 (1988). " `The IEP consists of a detailed written statement

arrived at by a multi-disciplinary team summarizing the child's abilities,

outlining the goals for the child's education and specifying the services

the child will receive.' " Oberti v. Board of Educ. of Borough of

Clementon

Sch. Dist., 995 F.2d 1204, 1213 n.16 (3d Cir. 1993) (quoting Polk v.

3

recommended placement at a "public/private separate

school." (A.185a). Accordingly, Michael attended a small

private school for learning disabled students called the LAB

School. The LAB School served only students with

disabilities, and therefore its students were segregated from

their non-disabled peers. Michael attended the LAB School

for three years.

When Michael and his father moved to Pennsylvania in

1997, the father contacted Radnor educational authorities

to obtain appropriate placement for Michael. Radnor

convened an "IEP meeting" to develop an interim program

for Michael for the 1997-98 school year. At this time,

Radnor had not yet completed its own evaluation of

Michael's educational needs. By letter dated August 26,

1997, Radnor offered Michael two interim programming

options pending completion of its own evaluation of

Michael's needs. Both of these options placed Michael at

Radnor High School ("Radnor High"), a large public high

school with a total enrollment of approximately 800

students, where Radnor believed it could effectively

implement the substance of Michael's Washington IEP. The

first option, which Radnor characterizes as the"learning

support" or "LS" option, involved enrolling Michael in

mainstream English, science, social studies and elective

classes, and in special education mathematics and written

expression classes. This option also involved provision of

support for homework and test preparation, and the

development of study skills through a special education

resource program. The second option, which Radnor

characterizes as the "emotional support" or"ES" option,

_________________________________________________________________

Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d

Cir.1988), cert. denied, 488 U.S. 1030 (1989)). It "must include, among

other things, a statement of the child's current level of educational

performance, annual goals for the child, specific educational services to

be provided, and the extent to which the child will participate in regular

educational programs." Id. (citing 34 C.F.R. 300.346, subsequently

recodified at 34 C.F.R. S 300.347 by 64 Fed. Reg. 12405, 12442 (Mar.

12, 1999)).

3. Under the IDEA, Washington, D.C. is considered a "State." 20 U.S.C.

S 1401(27).

4

involved enrolling Michael in an "Emotional Support

Program" for English, science, social studies, health and

physical education classes, in "learning support" for

mathematics, and in mainstream elective courses.

Michael's father rejected these options, and unilaterally

decided to place Michael at the Hill Top School, a small

private school for children with disabilities. In the fall of

1997, before Radnor had completed Michael's evaluation,

Michael and his father again relocated, this time to New

Jersey, for reasons related to the father's job. Michael had

attended Hill Top for 41 days, during which time his father

incurred tuition expenses in the amount of $4299.31.

Because Michael left Pennsylvania before Radnor officials

had completed their own evaluation of Michael's

educational needs, Radnor never developed its own IEP for

Michael.

In January 1998, after moving to New Jersey, Michael's

father initiated a due process hearing in Pennsylvania as

provided for by the IDEA, 20 U.S.C. S 1415(f). The purpose

of this hearing was to determine whether the IDEA required

Radnor to reimburse the father for the cost of Michael's Hill

Top tuition. Both the local hearing officer and later the

Pennsylvania Special Education Appeals Panel rejected the

father's request. Both relied on a policy memorandum of

the United States Department of Education's Office of

Special Education Programs ("OSEP") stating that when a

disabled student moves from one state to another, the new

state of residence is not required to adopt and implement

the most recent IEP developed for the student by the

previous state of residence.

The plaintiffs then instituted the present action against

Radnor and PDE. PDE moved to dismiss their S 1983 claim

against it based on the Eleventh Amendment. In addition,

the parties agreed that all claims could be decided on the

administrative record without further evidence, and cross-

moved for summary judgment. On February 5, 1999, the

district court granted PDE's motion to dismiss the S 1983

claim as to it, and also granted the defendants' motion for

summary judgment as to all claims and denied the

plaintiffs' cross-motion, relying heavily on the OSEP policy

memorandum.

5

II.

Although plaintiffs, Michael C. and his father, claimed

numerous statutory violations and one constitutional

violation in the district court, on appeal they seek relief on

only two of these grounds. First, they contend that the

IDEA's "pendency" or "stay-put" provision, 20 U.S.C.

S 1415(j), required Radnor to implement Michael's

Washington IEP. Second, plaintiffs argue that Radnor's

refusal to implement Michael's Washington IEP violated his

and his family's constitutional right to interstate travel. We

exercise plenary review over the district court's order

granting summary judgment in favor of the defendants. See

W.B. v. Matula, 67 F.3d 484, 493 (3d Cir. 1995). The

material facts being undisputed, we therefore address

plaintiffs' arguments that they, and not the defendants, are

entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52

(1986).

A. Whether the IDEA Required Radnor to Implement

Michael's Washington IEP

In enacting the IDEA, Congress made known its strong

preference for integrating students with disabilities into

regular classrooms, and against segregating such students

from their non-disabled peers unless absolutely necessary

to provide them with an educational benefit. See 20 U.S.C.

S 1412(a)(5)(A); Honig v. Doe, 484 U.S. 305, 311 (1988);

Oberti v. Board of Educ. of Borough of Clementon Sch. Dist.,

995 F.2d 1204, 1213-14 (3d Cir. 1993). Nevertheless, cases

presenting the reverse situation occasionally arise, where

the complaint is the school district's failure to segregate a

child from his or her non-disabled peers by placing that

child in a learning environment serving only disabled

students. This is such a case.

The plaintiffs contend that the defendants' refusal to

adopt Michael's Washington IEP and to implement that IEP

by placing him in the segregated Hill Top school, as

opposed to a more integrated learning program at Radnor

High, violated the IDEA's "pendency" or "stay-put"

6

provision. This provision, found at 20 U.S.C. S 1415(j),

states in pertinent part:

. . . [D]uring the pendency of any proceedings

conducted pursuant to this section, unless the State or

local educational agency and the parents or guardian

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 or guardian, be placed

in the public school program until all such proceedings

have been completed.4

Plaintiffs argue that when Michael moved to Radnor

Township, the LAB School in Washington was Michael's

"then-current educational placement," and Radnor

educational authorities' process of evaluating his

educational needs constituted pending proceedings.

Accordingly, plaintiffs contend that Radnor was obligated

during this time to implement Michael's Washington IEP,

and that this required placing him at Hill Top, a private

school, which they assert provided the educational program

most similar to the one Michael received at the LAB School.

The district court agreed with the local hearing officer,

the state appeals board, and the defendants that the IDEA

is silent on how to apply the pendency provision when a

student transfers from another state. It therefore accorded

deference to the federal OSEP Policy Memorandum 96-5.

That memorandum states in pertinent part:

[E]ntitlement to a [free appropriate public education,

or] FAPE, by its terms, encompasses an appropriate

educational program that is individually-designed for

each student in accordance with the requirements of

Part B [of IDEA] and the educational standards of the

State in which the student's parents reside. In

_________________________________________________________________

4. In 1997, Congress amended the IDEA. These amendments, which for

the most part became effective on June 4, 1997, substantially

reorganized the statute. They also slightly modified the stay-put

provision, which previously was found at 20 U.S.C.S 1415(e)(3)(A).

However, the 1997 amendments do not appear to have altered this

provision in any way relevant to this appeal.

7

addition, under 34 C.F.R. S 300.600, each State must

exercise a general supervision over all programs in the

State that provide educational services to disabled

students, and must ensure that all such programs

meet State education standards and Part B

requirements.

When a student moves from a school district in State

A to a school district in State B, the State B school

district first must ascertain whether it will adopt the

most recent evaluation and IEP developed for the

student by the State A school district. Since the State

A school district's evaluation and IEP were based in

part on the educational standards and eligibility

requirements of State A, the student's evaluation and

IEP developed by the State A school district might not

necessarily be consistent with the educational

standards of State B. Therefore, the State B school

district must determine, as an initial matter, whether

it believes that the student has a disability and

whether the most recent evaluation of the student

conducted by the school district in State A and the

State A school district's IEP meet the requirements of

Part B and well as the educational standards of State

B.

OSEP Policy Memorandum 96-5, reprinted in 24 Indiv.

Disabil. Educ. L. Rptr. 320 (U.S. Dep't Educ. Dec. 6, 1995).

The district court therefore held that the pendency

provision did not require implementation of Michael's

Washington IEP.

On appeal, plaintiffs make two arguments. First, they

contend that the OSEP Policy Memorandum is not entitled

to deference because the plain language of the pendency

provision and federal judicial and administrative decisions

interpreting this provision dictate a contrary result. Second,

they argue that regardless of the interpretation given the

IDEA's pendency provision, Pennsylvania regulations,

which the IDEA incorporates into its scheme, contain a

broader pendency requirement, and the Pennsylvania

pendency regulation dictates a contrary result. Radnor and

PDE dispute these arguments, and in addition contend that

because no "proceedings" under section 1415 were pending

8

while Michael resided in Radnor Township, the stay-put

provision is inapplicable. We address these arguments in

order.

1. Application of the IDEA's Stay-Put Provision

In interpreting a congressional enactment, a court must

first " `determine whether the language at issue has a plain

and unambiguous meaning with regard to the particular

dispute in the case.' " Deane v. Pocono Med. Ctr., 142 F.3d

138, 146 (3d Cir. 1998) (en banc) (quoting Robinson v. Shell

Oil Co., 519 U.S. 337, 340 (1997)). "The plainness or

ambiguity of statutory language is determined by reference

to the language itself, the specific context in which that

language is used, and the broader context of the statute as

a whole." Robinson, 519 U.S. at 340. The IDEA is silent on

how its pendency provision is to be applied to students who

transfer interstate versus students who transfer intrastate,

and the plain language of the pendency provision is at best

ambiguous with respect to this issue. On its face, it is not

clear that Congress intended the requirement that a

student remain in his or her "then-current educational

placement" to apply to students who relocate from one state

to another. For example, a student's prior placement no

longer seems "current" after he or she withdraws from that

placement and moves away. Moreover, it is impossible for

the student's new school district in Pennsylvania to keep

the student in his or her previous school as required by the

"stay put" provision where that school is in another state.

Therefore, we must look beyond the isolated text of section

1415(j) for guidance on how to apply this provision in this

case. See, e.g., United States v. Balascsak, 873 F.2d 673,

679 (3d Cir. 1989).

OSEP is the agency charged with principal responsibility

for administering the IDEA. 20 U.S.C. S 1402(a). The

portion of OSEP Policy Memorandum 96-5 relevant to this

case is properly characterized as an interpretive rule

because it imposes no substantive obligations, but rather

clarifies that the IDEA's pendency provision does not apply

to situations where a student moves from one state to

9

another. See Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir.

1989) (en banc).5

The district court deferred to OSEP Policy Memorandum

96-5, citing Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). This court has

held that the level of deference to be accorded such

interpretive rules depends upon their persuasiveness.

"Admittedly, [they] do not rise to the level of a regulation

and do not have the effect of law. A court is not required to

give effect to an administrative interpretation. . .. Instead,

the level of deference given to an interpretive bulletin is

governed by the bulletin's persuasiveness." Brooks v. Village

of Ridgefield Park, 185 F.3d 130, 135 (3d Cir. 1999)

(citations omitted). See Elizabeth Blackwell Health Center

for Women v. Knoll, 61 F.3d 170, 182 (3d Cir. 1995)

(deferring to HHS directive interpreting Hyde Amendment

restricting use of Medicaid funds to fund abortions, and

holding that HHS interpretation preempted Pennsylvania

law), cert. denied, 516 U.S. 1093 (1996); see also Honig,

484 U.S. at 325 n.8 (according deference to OSEP policy

letter setting forth agency's interpretation of phrase "change

in placement" in IDEA's predecessor statute).

The conclusion expressed in OSEP Policy Memorandum

96-5 that one state need not automatically accept and

implement an IEP developed by another state does not

appear to conflict with any previous or subsequent position

taken by that agency. As we now discuss in greater detail,

because this aspect of the policy memorandum is well-

reasoned and persuasive in that it comports with the

_________________________________________________________________

5. As it did before the district court, Radnor takes issue with portions

of

the OSEP Policy Memorandum suggesting that where a disabled student

with a functioning IEP in State A moves to State B, State B authorities

should follow a procedure for interim assessment and program

implementation prescribed therein. Although Radnor asserts that it

satisfied OSEP's suggested procedures in this case, it contends that

OSEP lacks authority under IDEA to impose these affirmative

requirements on school districts. It is unnecessary for us to reach this

issue, however (see Op. at 6 n.7; Radnor Br. at 18-19), and we express

no opinion on these portions of OSEP's memorandum. Rather, our

analysis is restricted to the memorandum's conclusion that one state

need not adopt and implement an IEP developed by another state.

10

IDEA's statutory and regulatory scheme and with precedent

interpreting that scheme, we are persuaded that the district

court did not err in its thoughtful analysis and conclusion

to defer to the memorandum.6

There are strong reasons for that deference and the result

reached by the district court. The IDEA recognizes that

education is traditionally a state function. Accordingly, it

leaves the responsibility of providing a free appropriate

public education, or "FAPE," to students with disabilities to

state and local educational authorities. See 20 U.S.C.

S 1400(c)(6) (1998); 20 U.S.C. S 1400(b)(8) (1996); 34 C.F.R.

SS 300.13, 300.600 (1999). Provision of a FAPE requires

that special education and related services must"meet the

standards of the State educational agency," and must

"include an appropriate preschool, elementary, or

secondary school education in the State involved." 20

U.S.C. S 1401(8) (1998); 20 U.S.C. S 1401(18) (1996). Under

current section 1412, States are eligible for federal financial

assistance only when the state demonstrates that it"has in

effect policies and procedures to ensure that it meets" the

conditions imposed, including that it makes available a

FAPE to children with disabilities residing in that state. 20

U.S.C. S 1412(a) (1998). A local educational authority is

_________________________________________________________________

6. Citing to 20 U.S.C. S 1407(f), plaintiffs argue that the 1997 IDEA

amendments make clear that OSEP's policy statements are not entitled

to the force of law. Presumably, plaintiffs intended to cite to S 1406(f),

which states that where the Secretary responds to an inquiry regarding

a policy, question, or interpretation under Part B of the IDEA, that

response "shall include an explanation that the written response--

(1) is provided as informal guidance and is not legally binding; and

(2) represents an interpretation by the Department of Education of the

applicable statutory or regulatory requirements in the context of the

specific facts presented."

Assuming that Policy Memorandum 96-5 is the type of response

referred to by this provision, section 1406(f) merely imposes a

requirement that the DOE response put readers on notice that it is not

legally binding. This requirement, which was not effective when OSEP

published Policy Memorandum 96-5, does not prevent us from

considering DOE policy statements to be persuasive and therefore

worthy of deference.

11

eligible to receive these federal funds only if it "has in effect

policies, procedures, and programs that are consistent with

the State policies and procedures established under section

1412." 20 U.S.C. S 1413 (1998).

Because Congress left primary responsibility for providing

a FAPE and for implementing the IDEA to the states, we

believe it unlikely that Congress intended the stay-put

provision, which dates back to 1975 and the IDEA's

predecessor statute, to impose a requirement on states that

they must implement an IEP established in another state

without considering how consistent that IEP is with the

policies and mandates of the student's new residential

state.

Precedent interpreting the IDEA's pendency requirement

supports this interpretation. As the parties observe, the

stay-put provision was intended to serve as a type of

"automatic preliminary injunction" preventing local

educational authorities from unilaterally changing a

student's existing educational program. See Drinker v.

Colonial School Dist., 78 F.3d 859, 864 (3d Cir. 1996).

Where the student's existing IEP calls for public school

placement with educational supports to compensate for the

child's disability, the stay-put provision may require that

local educational authorities not unilaterally attempt to alter

the IEP by placing the child in segregated, non-regular

education classes. See, e.g., Honig, 484 U.S. at 323-28;

Oberti, 995 F.2d at 1220-24. Conversely, where the

student's existing IEP requires placement in a private

school, the stay-put provision may require that local

authorities not unilaterally attempt to alter the IEP by

placing the student in a public, regular education classes.

See Drinker, 78 F.3d at 867; Jarczynski v. St. Mary's

County Pub. Sch., 29 Indiv. Disabil. Educ. L. Rep. 49 (D.

Md. Oct. 13, 1998).

However, where a parent unilaterally removes a child

from an existing placement determined in accordance with

state procedures, and puts the child in a different

placement that was not assigned through proper state

procedures, the protections of the stay-put provision are

inoperative until the state or local educational authorities

and the parents agree on a new placement. See Susquenita

12

Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996).7 Only

once state authorities and parents have reached such

agreement does a "then-current educational placement"

come into existence. Id. In the instant case, it is Michael's

father who unilaterally removed Michael from the LAB

School when he moved the family to Radnor Township.

Neither Washington educational authorities nor

Pennsylvania authorities played any role in this decision.

The plaintiffs now claim that upon moving to Pennsylvania,

Radnor should have placed Michael at the Hill Top School

rather than at Radnor High. However, his father never

reached any agreement with Radnor or with other

Pennsylvania educational authorities that Michael should

be placed in a segregated, private school. Therefore,

Michael had no "then-current educational placement" in the

Commonwealth of Pennsylvania, and the stay-put provision

provides no relief for him.

We hold that the IDEA's overall scheme and the

precedent interpreting that scheme leads inexorably to the

conclusion that when a student moves from State A to

State B, any prior IEP in effect in State A need not be

treated by State B as continuing automatically in effect.

This interpretation of the inapplicability of the stay-put

provision may, as plaintiffs claim, lead to the initial result

that "disabled students like Michael with comprehensive

and long-standing IEP's . . . can be forced upon an

interstate move to somehow cope in regular education

without supports while the district and the parent resolve

any IEP dispute." (Appellant's Br. at 14 (emphasis in

original)). But if parents believe that private school

placement remains the only way to provide the student with

the educational benefit required by the IDEA, or otherwise

disagree with an IEP proposal, they can place the child in

_________________________________________________________________

7. We note that this scenario is distinguishable from the situation in

which a parent unilaterally removes a child previously determined to be

disabled from one school district and moves the child to another school

district in the same state. In the latter situation, the child's

educational

placement has already been determined in accordance with state

procedures and with the consent of the child's parents, and his or her

IEP bears the imprimatur of that state. See Inquiry of Rieser, OSEP

Policy Letter, July 17, 1986 (U.S. Dep't Educ. 1986).

13

a private school, initiate a due process hearing, and seek

reimbursement from educational authorities later. 8 See

Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15

(1993); School Comm. of Town of Burlington, Mass. v.

Department of Educ. of Commonwealth of Mass., 471 U.S.

359, 369-73 (1985). Of course, they act at their own

financial risk, and will recover only if they are correct that

local authorities have failed to provide the educational

program to which their child is entitled under the IDEA.

Burlington, 471 U.S. at 373-74. The plaintiffs' contention

that these parents would have to keep paying private school

tuition out of pocket for "years" is meritless, as federal and

state regulations impose strict timing requirements on the

completion of evaluations, the development and

implementation of IEPs, and review of challenges to a local

educational authority's proposal or refusal to initiate or

change the identification, evaluation, or educational

placement of a child or the provision of FAPE to a child. See

34 C.F.R. SS 300.504(a), 300.512; 22 Pa. CodeSS 14.25(m),

342.25(p) (timeline for completion of multidisciplinary

evaluations); 22 Pa. Code. S 14.32(i) (timeline for

preparation and implementation of IEPs); 22 Pa. Code

SS 14.63, 14.64(o) (timelines for requesting and holding

prehearing conference or due process hearing). We are

mindful that this interpretation may bind the hands of

parents who cannot afford to pay private school tuition out-

of-pocket and await future reimbursement. This same

result, however, can occur where parents of a student who

transfers intrastate disagree with the new school district's

placement of their child, and appears to be an unfortunate

reality of the system Congress created.

Accordingly, we hold that the interpretation adopted by

OSEP in Policy Memorandum 96-5 is a reasonable

_________________________________________________________________

8. Because Pennsylvania never established an IEP for Michael, it is not

certain that Radnor's interim educational plan for Michael was

inappropriate. The administrative hearing officer concluded that the

interim options proposed by Radnor would have closely approximated

the placement Michael received at the LAB School. The district court

found that this conclusion was supported by substantial evidence on the

record as a whole (Op. at 8 n.10), and plaintiffs have not appealed this

determination.

14

accommodation of the stay-put provision and the overriding

purposes and structure of the IDEA, and we are persuaded

that this interpretation deserves deference.9

2. Pennsylvania's Regulatory Pendency Requirement

Nevertheless, even though the IDEA's stay-put provision

does not provide a basis for relief, "[f]ederal law

incorporates state standards, and a school district may

violate the IDEA if it fails to satisfy the more stringent state

_________________________________________________________________

9. We note that an additional reason for adopting OSEP's interpretation

of the stay-put provision, not asserted by the parties, may lie in the

limited congressional authority under which the provision was originally

enacted. The stay-put provision dates back to 1975, when it was enacted

as section 615(e)(3) of the IDEA's predecessor statute, the Education for

All Handicapped Children Act. See Pub. L. No. 94-142, 1975

U.S.C.C.A.N. (89 Stat.) 773, 789. Congressional authority for passage of

this statute derived from its spending power, U.S. Const. art. I, S 8, and

that act functioned by conditioning state and local educational

authorities' eligibility for federal funds upon their satisfaction of

certain

conditions favorable to education of disabled students. See Board of

Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176,

204 n.26 (1982). The Supreme Court has stated that"if Congress

intends to impose a condition on the grant of federal moneys, it must do

so unambiguously." Id. (quoting Pennhurst State School v. Halderman,

451 U.S. 1, 17 (1981)).

However, we note one wrinkle in this analysis. The 1997 amendments

to the IDEA altered the statute's "findings" provision to include language

invoking the Equal Protection Clause of the Fourteenth Amendment. See

18 U.S.C. S 1400(c)(6)-(10). This addition of the Fourteenth Amendment

as a constitutional basis for passage of the 1997 IDEA amendments may

undercut this spending power argument. Nevertheless, after the 1997

amendments, the stay-put provision remained substantially identical to

its previous text, was placed in "Part B" (subchapter II) of the amended

statute, which is entitled "Assistance for Education of All Children with

Disabilities," Pub L. No. 105-17, 1997 U.S.C.C.A.N. (111 Stat.) 37, 49,

and continued to appear in 20 U.S.C. S 1415, subpart (a) of which

explicitly states that the procedures established by that section are

conditions imposed upon "[a]ny State educational agency, State agency,

or local educational agency that receives assistance under this

subchapter."

Regardless, the parties have not raised or briefed this argument, and

we do not rely on it in deciding this appeal.

15

law requirements." Frith v. Galeton Area Sch. Dist., 900 F.

Supp. 706, 712 n.9 (M.D. Pa. 1995) (citing Doe v. Board of

Educ. of Tullahoma City Sch., 9 F.3d 455, 457 (6th Cir.

1993) (per curiam), cert. denied, 511 U.S. 1108 (1994)); see

also Board of Educ. of East Windsor Regional Sch. Dist. v.

Diamond, 808 F.2d 987, 992 (3d Cir. 1986). The plaintiffs

argue that a Pennsylvania regulation imposes a more

stringent pendency requirement than that imposed by IDEA

itself or by DOE regulations. The regulation in question

states:

No change in the identification, evaluation, educational

placement or IEP of an exceptional student or an

eligible young child may be made during the pendency

of an administrative or judicial proceeding unless

agreed upon by the parties to the proceeding.

22 Pa. Code S 14.61(b).

The plaintiffs contend that this regulation's prohibition

on changes in a child's "identification, evaluation,

educational placement, or IEP" is broader than the federal

prohibition on changes in a child's "then-current

educational placement," and that this broader sweep

includes evaluations and IEP's from other states. One

federal district court has noted in dictum that the

Pennsylvania regulation is "much more prohibitive than its

federal counterpart" in that S 14.64(b) prohibits re-

evaluation during the pendency of proceedings, whereas the

federal stay-put provision only prohibits a change in

educational placement. See Delaware County Intermediate

Unit # 25 v. Martin & Melinda K., 831 F. Supp. 1206, 1223

n.25 (E.D. Pa. 1993). However, two other federal courts,

including this court, have noted that the requirements of

S 14.64(b) "track" the federal standard. See Drinker, 78 F.3d

at 864 n.11; Matthew K. v. Parkland Sch. Dist., No. Civ. A.

97-6636, 1998 WL 84009, at *5 n.6 (E.D. Pa. Feb. 26,

1998).

The district court rejected Michael's contention, holding

that "the Pennsylvania regulations are silent on accepting

out of state IEP's." (Op. at 7 n.8). We believe the district

court was right to do so for two reasons. First,

Pennsylvania regulations contain a provision expressly

requiring that:

16

If an exceptional student moves from one school

district in this Commonwealth to another, the new

district shall implement the existing IEP to the extent

possible or shall provide the services and programs

specified in an interim IEP agreed to by the parents

until a new IEP is developed and implemented in

accordance with this [and other] sections[ ] . . . and

until the completion of due process proceedings . . . .

22 Pa. Code. S 14.31(c). The existence of this specific

regulatory provision is significant because a parallel

provision dealing with students who move from another

state to a school district in Pennsylvania, and who had

previously been educated in accordance with an IEP

developed in that other state, is conspicuously absent from

these regulations. This absence evidences a lack of intent

on the part of Pennsylvania regulators to address Michael's

situation.

Second, the Pennsylvania appeals panel, the highest

administrative authority of the Commonwealth to opine in

this case, concluded that because the federal pendency

provision did not apply, once plaintiffs rejected Radnor's

interim IEP offer, "Michael was considered a regular

education student." (A.119a). Presumably, had this state

administrative panel construed Pennsylvania regulations to

mandate implementation of the Washington IEP, it would

have so held in its analysis.10

Accordingly, we hold that Pennsylvania regulations do

not require a Pennsylvania school district such as Radnor

to implement the IEP formulated in another state.

3. "Proceedings"

In addition, even if we did interpret the IDEA's stay-put

provision to require a state to implement an IEP developed

by another state, this provision is not applicable in this

case because by its terms, it applies only to attempts to

_________________________________________________________________

10. In addition, the local hearing officer directly rejected plaintiffs'

argument, finding that Pennsylvania's regulations are merely

"clarifications of how to implement the federal IDEA requirements within

Pennsylvania." (A.127a-28a).

17

alter a student's current educational placement "during the

pendency of any proceedings conducted pursuant to this

section." 20 U.S.C. S 1415(j) (emphasis added). (See Radnor

Br. at 9; PDE Br. at 14). Radnor and PDE contend that the

earliest proceeding that can be conducted pursuant to

section 1415 is a due process hearing (conducted pursuant

to section 1415(f)), and that since Michael had already

moved to New Jersey when he requested a due process

hearing, no proceeding "conducted pursuant to" section

1415 was pending at the time he resided in Radnor

Township.

The district court rejected this argument, holding that

proceedings under section 1415 included "the opportunity

of the parent or guardian to inspect relevant records with

respect to the child's evaluation, and the notice

requirement the school district must satisfy when making

the initial placement decision," both of which had begun

while Michael lived in Radnor Township. (Op. at 4 n.4). The

district court characterized these as "proceedings set forth

in S 1415(b)," and noted that both "are part of the process

by which a school district changes a student's placement,

but by definition occur before the start of a due process

hearing."

In this respect, the district court was mistaken. The types

of proceedings dealt with in section 1415(b), which include

the conduct and development of evaluations, eligibility

determinations, IEPs, and educational placement, arise

under section 1414. Section 1415(b) merely sets forth

"procedures" to be observed during these "proceedings."

Therefore, no proceedings conducted pursuant to section

1415 were pending during the time Radnor offered to place

Michael in Radnor High and his father instead placed him

at Hill Top.11 See Verhoeven v. Brunswick Sch. Comm., ___

F.3d ___, No. 98-2348, 1999 WL 721698, at *5 (1st Cir.

Sept. 21, 1999) (stay-put provision applies during pendency

of "administrative and judicial proceedings challenging a

placement decision"); Kari H. v. Franklin Special Sch. Dist.,

_________________________________________________________________

11. We do not address whether the mediation procedures codified at

section 1415(e) by the 1997 IDEA amendments qualify as "proceedings

conducted pursuant to" section 1415 under the pendency requirement.

18

Nos. 96-5066 and 96-5178, 1997 WL 468326, at *6 (6th

Cir. Aug. 12 1997) (per curiam) (only three types of

proceedings arise under section 1415 -- due process

hearings, state administrative review, and civil judicial

review actions in state or federal court).12

Because we conclude that neither the stay-put provision

nor Pennsylvania regulations required Radnor to implement

Michael's Washington IEP, and that no proceedings were

pending in Pennsylvania while Michael resided there, we

therefore hold that plaintiffs' claim for reimbursement

under the IDEA must fail.13

B. Michael's Constitutional Right to Travel

The plaintiffs also contend that Radnor's failure to

implement Michael's Washington IEP violated their

Fourteenth Amendment right to travel interstate by denying

Michael benefits that would be afforded to a disabled

student who transferred intrastate, from one Pennsylvania

school district to another. We disagree.14

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12. See also Drinker, 78 F.3d at 863-64 (noting that stay-put provision

applies during impartial due process hearing on parents' complaints

regarding educational placement of handicapped children, and during

state or federal judicial review of final administrative proceedings,

without comment about provision's application to earlier proceedings

involving local educational authorities); Mrs. C. v. Wheaton, 916 F.2d 69,

72 (2d Cir. 1990) (implying that pending "proceedings" means due

process proceedings under section 1415); Smith v. Roher, Civ. A. No. 89-

3258, 1991 WL 132545, at *1 (D.D.C. July 10, 1991) (stay-put provision

applies once process of administrative review of placement decision is

commenced and remains in effect through completion of civil action in

district court).

13. Although it does not appear that plaintiffs have appealed their claim

under the Rehabilitation Act, 29 U.S.C. S 794, we note that the district

court correctly concluded that this claim is derivative of their IDEA

claim

(Op. at 9), and therefore this claim too must fail.

14. In addition to granting summary judgment in favor of both

defendants on this claim, the district court also dismissed plaintiffs'

S 1983 claim as to PDE based on that defendant's Eleventh Amendment

immunity. (Op. at 2 n.3). The plaintiffs have not argued that this

decision was erroneous, and we therefore do not consider that ruling

19

The Court has described the constitutional right to travel

as embracing at least three components: (1) the right of a

citizen of one state to enter and leave another state; (2) the

right to be treated as a welcome visitor rather than an

unfriendly alien when temporarily present in the second

state; and (3) for those travelers who elect to become

permanent residents, the right to be treated like citizens of

that state. See Saenz v. Roe, 119 S. Ct. 1518, 1525 (1999).

The plaintiffs contend that the last of these components is

violated by Radnor's refusal to honor Michael's Washington

IEP. They base this assertion on the testimony of Radnor's

Director of Special Education that, had Michael been a

Pennsylvania resident who merely moved from another

Pennsylvania school district to Radnor, an IEP calling for

private placement would have been honored. (A.154a).

Adoption of the policy enunciated in OSEP Policy

Memorandum 96-5, however, does not cause Michael to be

treated differently from other Pennsylvania residents. Every

student in Pennsylvania identified as disabled is entitled to

an evaluation, an IEP, and if warranted, a special

placement, in accordance with Pennsylvania procedures.

Had Michael been a Pennsylvania resident transferring to

Radnor from another Pennsylvania district, where he had

already been identified as disabled and was being educated

in accordance with an IEP developed there, he would have

already submitted to these procedures. The District

Director of Special Education's testimony that Radnor

would have honored an IEP developed under such

circumstances flows logically from this view and in no way

affects plaintiffs' right to travel interstate.

Michael transferred from Washington, and had not yet

undergone an evaluation in accordance with Pennsylvania

procedures, as every other disabled student enrolled in

Pennsylvania had. Therefore, in requiring that a new IEP be

_________________________________________________________________

presented for our review. Accordingly, we discuss the plaintiffs' S 1983

claim as against Radnor only. Moreover, we do not address PDE's

additional argument that Michael has not adequately alleged that any

PDE official was involved in the decision not to honor his Washington,

D.C. IEP.

20

developed, Radnor's treatment of Michael was not

inconsistent with its treatment of Pennsylvania residents.

Indeed, only by submitting to these procedures could

Pennsylvania determine if Michael even had a right (under

the IDEA) to a private placement. Pennsylvania decided

that, at least on an interim basis, Michael had no such

right, and his educational needs could instead be met in a

structured public school placement. We need not pass on

the merits of that decision. See supra note 8.

Arguably, requiring a disabled student who has

undergone evaluation and IEP development in a different

state to submit to this process a second time upon moving

to a new state possibly may deter the student and his

family from moving to the new state. However, an otherwise

constitutional law that incidentally discourages migration is

not necessarily rendered suspect or invalid merely because

of such incidental effect. See Lawrence H. Tribe, American

Constitutional Law S 15-14, at 1381 (2d ed. 1988).

Michael has a right, established by the IDEA and defined

by state law, to a free, appropriate public education.

Radnor has done nothing to alter or deny Michael that

right. It has not imposed different standards on the type of

education Michael may receive versus the type of education

a disabled student who moves from one school district to

another within Pennsylvania may receive. Thus, Michael

cannot claim that Radnor's action in this case violated his

right to travel under the Equal Protection Clause of the

Fourteenth Amendment, and consequently, cannot claim a

violation of 42 U.S.C. S 1983.

III.

For the foregoing reasons, the order of the district court

granting summary judgment in favor of the defendants and

denying summary judgment for the plaintiffs will be

affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

21