101 Iowa L. Rev. 745 (2016)

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Abstract

The "stay-put provision" of the Individuals with Disabilities Education Act ("IDEA") serves as an "automatic preliminary injunction" to prevent any change in a student's then-current educational placement until the student's parents and the local educational agency (usually a school district) resolve a dispute over the student's education through administrative and judicial proceedings. The stay-put provision not only prevents schools from excluding students, but also prevents students from being whipsawed between placements as the school district and parents appeal adverse decisions.

Today, the proper application of the stay-put provision continues to be hotly contested, most recently in the circuit split identified by the Third Circuit's decision in M.R. v. Ridley School District. Critical to but not disputed in Ridley School District is the one-sentence dictum regarding the stay-put provision's agreement exception from the 1985 Supreme Court case School Committee of Burlington v. Department of Education. Although the Burlington dictum was not binding precedent and is easily distinguished, lower courts applied it with such reflexivity that the US. Department of Education eventually promulgated a regulation for no other stated reason than to codify "this longstanding judicial interpretation." Surprisingly, however, Burlington's interpretation of the agreement exception has rarely been scrutinized or justified. As a result and for the first time, this Note comprehensively scrutinizes the Burlington dictum and its possible rationales, and concludes that it is time for the courts and the Department of Education to abandon the dictum in light of recent changes to the IDEA and the unnecessary instability it creates for students with disabilities especially those with autism spectrum disorder.