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  • Law Office of Richard J Murphy, PLC

A recent 9th Circuit Case reaffirms the parent’s right to stay put protections

Updated: Nov 2, 2021

Parents can prevent a school from making significant changes to their child’s IEP using the “stay put” protection. This protection applies only when a parent files a due process complaint. Stay put means the school must keep the student in the placement they were in before the dispute arose. If a parent is seeking to prevent a change in placement, the stay put protection applies automatically. The parent does not have to win to keep the same placement. Stay put applies even if an administrative law judge (“ALJ”) decides against the parent at the hearing. The protection last as long as the complaint is pending.

The stay put protection can also apply after a parent succeeds in a due process complaint. If a parent is seeking to change the student’s placement and the ALJ agrees, that new placement becomes the “stay put” placement.

The 9th Circuit Court of Appeals in S.C. v Lincoln County School District (October 18, 2021) reaffirmed this protection. The parents requested a different setting due to the student’s disabilities requiring total food security. The school could not provide that so the parents wanted a change in placement to a private residential school that could. After parents filed the complaint, the District developed another IEP. It continued the placement in the school district without total food security. The parents did not agree with that IEP. But the parent did not include a claim that the new IEP denied her FAPE.

The ALJ ordered the District to place the student in the residential school starting with the winter 2021 semester. The placement was to continue until the District could provide total food security school-wide.

The District did not appeal the ruling but still refused to place the student in the private school or pay for it. It claimed the parents had not challenged the most recent IEP, completed before the ALJ’s decision but after the due process case was filed. The parent filed an action in the District Court for a stay put order for the student’s placement. The District Court denied this request.

The Ninth Circuit reversed the District Court and held the ALJ’s order was a change in placement for the student. The District could not unilaterally change that placement because of the stay put protection. If the District Court was correct, it would mean that a parent would have to repeatedly file due process complaints every time a new IEP is developed.

That way, the parent could never get the benefit of a favorable ALJ ruling.

If you disagree with a decision about your child’s placement, stay put could help but only if you file a due process complaint. Please contact the Law Office of Richard J. Murphy, PLC if you need help with your child’s placement or a disputes about the IEP.

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