Tuesday, March 30, 2010
Hearing officer rules student is entitled to “stay put” in a Furlough Friday hearing
by Larry Geller
Since the Furlough Friday case filed on behalf of a number of special ed students was heard on February 10 (see: Furlough Fridays case heard by 9th Circuit judges, 2/10/2010), there hasn’t been any further activity on the case page on the court website. But there is a hopeful new development here in Hawaii.
One of the plaintiffs has completed a due process hearing. The hearing officer wrote:
Stay-put is an automatic injunction that requires the child to remain in his or her then-current educational placement during the pendency of any administrative and subsequent judicial proceedings, unless the DOE and parents agree otherwise. See, 34 C.F.R.§300.518. As such, Student is entitled to stay-put at the Home School pursuant to the program and placement of his July 23, 2009 IEP.
Petitioners' request for stay-put would, however, require the Hearings Officer to order the Home School to reconvene on furlough days for Student and all Home School students: That request is beyond the jurisdiction of the Hearings Officer and cannot be granted.
So if I read this correctly, the hearing officer has ruled that “stay put” applies, which means that the school cannot shut down his placement at his home school. But we know that they are doing this, on the now infamous Furlough Fridays. The last paragraph indicates that the hearings officer doesn’t have jurisdiction to order the schools to remain open, however. Who can do that? The courts can.
What does this mean?
For other students filing for due process, since these hearings depend on precedent, this decision could be replicated in others that come up.
Attorney Carl Varady has filed the due process decision with the judge who ruled on the request for preliminary injection in November, along with a motion asking the judge to take “judicial notice.”
Since the motion was filed on the original case, I don’t know if it affects the 9th circuit appeal yet. Probably what happens there would depend on what Judge Tashima does in response to Varady’s motion.
He might, for example, say “Yup, you’re right,” in a judicial way, of course, and order the end of Furlough Fridays. Or not.