Alexandra Soisson, Managing Editor, University of Cincinnati Law Review
Following the landmark decision in Brown v. Board of Education, parents and guardians were inspired to seek similar education integration mandates for children with disabilities, arguing the separation of students with disabilities was similarly unequal. Since that decision, there has been a determined effort to ensure students with disabilities receive appropriate educational instruction as well as suitable accommodations. Most notably, the Individuals with Disabilities Education Act (IDEA) was passed in 1975 (under the name “Education for All Handicapped Children Act” (EHA) at the time) as a way to ensure students with disabilities were getting the education they deserve.
The IDEA covers disability rights for students and their guardians throughout the process of disability identification, launching of disability services, ensuring those services are effective, and developing the student’s learning goals throughout his or her educational career. Though these rights are clearly laid out in the Act, one area where there is some confusion surrounds the right of reimbursement for private school tuition. When parents enroll their child in private school pending an investigation into the fitness of their disabled child’s accommodations in the public school, it is unclear whether they can be reimbursed for the tuition expenses. Given the length of the appeals process and the significant learning loss that can occur while a student awaits the decision of the review board, parents should be able to receive reimbursement for their child’s private school tuition during the entire waiting period.
The Right to Free Appropriate Public Education
In 1975 Congress enacted the Education for All Handicapped Children Act (EHA) which guaranteed a free, appropriate public education for children with learning, developmental, and other specified disabilities. In 1990, the Act was amended and renamed the Individuals with Disabilities Education Act (IDEA) with the restated goal of providing children with disabilities equal opportunities in education as students without disabilities. The IDEA governs how states and public agencies provide intervention, special education, and other related services to over 6.5 million American children. The Act covers students that 1) have a disability that affects their learning and 2) are students that would benefit from individual educational and related services. If a student qualifies under one of the thirteen outlined disabilities, the government will provide federal funding—amounting to about 40% per-pupil additional spending—for the school to provide the necessary instruction and accommodations to ensure that the student receives free, appropriate public education (FAPE).
To recognize the key protections outlined in the IDEA, it is critical to understand exactly what a “free appropriate public education” means and what rights are protected by that guarantee. First, the guarantee the education is “free” means that “all eligible students with disabilities will be educated at public expense.” This means parents are not responsible for any additional costs that may come with their child’s arranged accommodations or modifications. This security is essential to ensuring children with disabilities are not discriminated against based on their parent’s ability to pay.
The second requirement is that the education is “appropriate.” An appropriate education means the education is tailored and planned to meet the individual students needs as stated in his or her Individualized Education Plan (IEP). The guarantee of a “public” education refers to the American public schools system. In most cases, this means the child will be accommodated within their local public school. In limited cases, the government will pay for children to attend private school if the child’s assigned public school cannot accommodate the child’s needs. Finally, the “education” requirement in FAPE means that every eligible school-age child with a disability must be provided an education. The education provided must comply with the services and goals outlined in the student’s individualized education plan and should prepare the student for the future in some capacity. The FAPE guarantee, and everything that is encompassed within those terms, serves as the basis for the protections outlined in the IDEA.
A cornerstone of the IDEA is the individualized education plan. An individualized education plan (IEP) is a written statement for a child with a defined disability that is developed, reviewed, and revised for the purposes of supporting the student’s growth and learning. These written plans include a statement of the child’s current level of academic achievement, how the child’s disability may affect their participation in particular activities, measurable goals (both academic and social), and methods teachers and other instructors can use to aid the student in achieving those goals. The IEP serves as a legal contract between the school district and the child—and by extension the parent—to provide the outlined services to aid the child.
The Establishment of the Right to Reimbursement
In 1985, the Supreme Court made a landmark ruling regarding the importance of parent’s procedural rights surrounding disability education in School Committee, Town of Burlington v. Department of Education. The Court held that, under certain circumstances, public school districts must reimburse parents and guardians for private educational expenses. In Burlington, the father of a disabled child rejected a school’s proposed IEP for his child and enrolled his child in a private school while the IEP was reviewed by the state board of education. The U.S. Court of Appeals for the First Circuit held the parent’s independent change of placement during the pendency of administrative proceedings does not bar them from reimbursement if the parent’s actions were found to be appropriate. The Supreme Court affirmed, holding a court may order school authorities to reimburse parents for their expenditure on private special education if the parent’s rejection of the IEP was proper under the IDEA, even if they incur those expenses without the consent of local authorities. In making this judgment, the Court construed the Congressional intent in the IDEA as equally emphasizing the involvement of parents in the administrative process. Further, the Court’s holding confirms even in the absence of agreement with school officials, they believe Congress intended to provide the full range of due process rights to parents.
The Supreme Court holding in Burlington provides a significant tool for parents and guardians. The holding makes it clear parents are not required to wait until their child’s IEP or accommodation has been reviewed in order to seek better educational options for their child, at least through the trial phase. However, because the Court in Burlington did not definitively say whether a parent can be reimbursed for education during appellate procedures, that question has been left up to the lower courts.
When Does the Right to Reimbursement End?
The IDEA includes a “stay-put” provision designed to create consistency for a child during a review of the appropriateness of their accommodations. The “stay-put” provision of the IDEA provides: “during the pendency of any proceedings conducted pursuant to this section, unless the state or local educational agency and the parent otherwise agree, the child shall remain in the then-current educational placement of the child.” The goal of the provision is to prevent the added burden on families of moving the child back and forth between schools during the review process. In 1989, the U.S. Court of Appeals for the D.C. Circuit, ruled on the meaning of “proceedings” within the provision. The court held the stay-put provision of the IDEA only applies through the trial court decision because the word “proceedings” does not include judicial appeals. The court found the Act’s “stay put” provision did not entitle appellants to an injunction requiring the students to remain at their current private school at the school district’s expense during judicial appeals.
Nearly thirty years later, two holdings out of the Third and Ninth Circuits have created a split regarding whether the “stay-put” provision applies through the appeals process or stops after the trial phase. In 2009, the Ninth Circuit held the Anderson decision was too narrow, arguing that allowing a child’s placement to be disrupted during the appeals process runs counter to the purpose of the “stay-put” provision. The court interpreted the phrase “current educational placement” to be the school described in the child’s most recently implemented IEP. If the child was moved to a private school and a new IEP was implemented at that school, then that is the child’s “current educational placement” and the child should not be removed from that school during the entirety of the review processes. Following that line of thought, the court held the injunction should be enforced throughout the entire appellate process because the language within the “stay-put” provision should be interpreted in favor of the child’s interests.
Echoing the Ninth Circuit, the Third Circuit held it is necessary to enforce the stay-put provision through the appellate procedures because that aligns with Congress’ intent to guard the stability of the child. The court reiterated the premise of the IDEA is for parents and schools to work together to reach the goal of ensuring a FAPE for every child. However, the court believed Congress envisioned that “collaborative process” between parents and schools may break down at times and to combat that break down, Congress included a right to seek state or federal review of decisions related to the child’s education. The Ninth Circuit believed Congress included the “stay-put” provision in expectation of these proceedings and the provision “impliedly and necessarily deems reimbursement for costs of pendent placement in a private schools as an appropriate remedy.” The Ninth Circuit found the obligation for reimbursement arises automatically from a determination that the private school is an appropriate solution during the trial phase and found it entirely unnecessary to make a separate determination for the appellate phase.
The “Stay-Put” Provision Should Last Throughout the Entire Review Process
The Third and Ninth Circuit’s more broad interpretation of the “stay-put” provision correctly extends the right of reimbursement to the family though appellate proceedings. Those courts appropriately emphasize the point of the “stay-put” provision as a safeguard to ensure stability for the child that is completely undermined by the suggestion that the right only extends through the trial proceedings. It is clear from the fact that Congress included the stay-put provision at all that they anticipated disagreements between parents and school districts about the appropriate accommodations for the student and Congress did not want those disagreements to negatively affect the child’s learning. Following that reasoning, there is no justifiable excuse for eliminating that protection at the appeals stage.
Limiting the “stay-put” provision to the trial court phase forces disabled children with limited resources to move back to schools that may be inappropriate for the student so the family can avoid the costs of the private schools while they await a ruling on their appeal. Families who are able to cover the costs of tuition during that process will be able to leave their child in the private school until a ruling is made, whereas other students without those resources will not have those opportunities. This inequity runs counter to the key protections under FAPE and the IDEA to a free and appropriate education. The protections guaranteed under FAPE as well as the clear discriminatory effect resulting from limiting reimbursement to the trail stage makes it clear the “stay-put” provision should be inclusive of the appellate proceedings.
Ideally, Congress will amend the “stay-put” provision of the statute to explicitly make clear a parent’s right to reimbursement during appellate proceedings. However, until such an amendment is added, courts should follow the more recent trends in the Third and Ninth Circuits that aim to protect all children. The creation of the IDEA opened countless opportunities for students with disabilities who previously did not have access to free and appropriate public education. The language of the Act, as well as judicial interpretations of the Act, make it clear that the goal of the Act is to make those opportunities as available as possible to all students with disabilities. Arbitrarily limiting a provision of the Act to create barriers for families and instability for students does not align with the goals of the IDEA or the requirements of FAPE. Courts should interpret the language of the “stay-put” provision to extend throughout the entirety of the accommodation review process because it is the only interpretation that aligns with the purpose of the Act and the purpose of the American education system.
 347 U.S. 483, 74 S. Ct. 686 (1954). Brown held that the “separate but equal” doctrine was unconstitutional in public education. The court in Brown held that Segregation was a denial of the equal protection of the laws under the Fourteenth Amendment and thus separate educational facilities were inherently unequal.
 94 P.L. 142, 89 Stat. 773.
 Id. Requirements of the IDEA (Ohio Rev. Code Ann. § 3323.02 (Page, Lexis Advance through file 49 (SB 70). This section tracks the federal protections of the IDEA and further dictates that all school districts, county boards of developmental disabilities, and other education agencies who receive federal funding must operate in accordance with the IDEA and its related provisions.
 Patricia H. Latham, At a Glance: Free and Appropriate Public Education (FAPE), Understood https://www.understood.org/en/school-learning/your-childs-rights/basics-about-childs-rights/at-a-glance-free-and-appropriate-public-education (last visited Apr. 9, 2018).
 Free Appropriate Public Education (FAPE), U.S. Office for Civil Rights, https://www2.ed.gov/about/offices/list/ocr/frontpage/pro-students/issues/dis-issue03.html (last visited Apr. 9, 2018).
 20 U.S.C.S. § 1414 (LexisNexis, Lexis Advance through PL 115-129, approved 2/26/18).
 471 U.S. 359 (1985).
 Id. at 361 (emphasis added).
 Id. at 366.
 Id. at 370.
 Id. “Although not acted upon in the case, Burlington emphasized that an official’s failure to meet procedural requirements could provide an adequate basis for a judgment that a district denied a free appropriate public education to a student with special needs.”
 Burlington, 471 U.S. 359; Savita Sivakumar, “Stay-put or Pay for Better: Students with Disabilities and the Stay-Put Provision, SUNDAY SPLITS (March 5, 2018), http://sundaysplits.com/2018/03/05/stay-put-or-pay-for-better-students-with-disabilities-and-the-stay-put-provision/: The dicta in the opinion suggests that reimbursement for appellate procedures should only be approved if “the State or local education agency and the parents…agree.”
 Andersen v. District of Columbia, 877 F.2d 1018 (1989).
 Id. (emphasis added).
 20 U.S.C.S. § 1415(e)(3) (LexisNexis, Lexis Advance through PL 115-132, approved 3/9/18).
 Savita Sivakumar, “Stay-put or Pay for Better: Students with Disabilities and the Stay-Put Provision.” Supra note 29.
 Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036 (9th Cir. 2009).
 Id. at 1037
 Id. The court additionally found that a motion for an injunction to allow the child to stay-put functions as an automatic preliminary injunction, meaning the moving party does not need to show the traditionally required factors of a preliminary injunction in order for the motion to be granted.
 Id. at 1040.
 M.R. v. Ridley Sch. Dist., 744 F.3d 112 (3d Cir. 2014).
 Id. at 117.
 Id. at 123.
 Id. at 127.
 Savita Sivakumar, “Stay-put or Pay for Better: Students with Disabilities and the Stay-Put Provision,” Supra note 29.