### 1996 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-18-1996 

# S u sque nit a S ch D i s t v

. S

.

P r e c e de n t i al or N on-P r e c e de n t i al :

D ocke t 95-7575

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1996

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 1996 D e c i sion s b y a n author i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### Re c omme nde d C it a t ion

" S us que nit a S ch Di s t v

. S

. " (1996). 1996 D e cisio n s

. P ape r 76.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1996/76UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 95-7575

___________

SUSQUENITA SCHOOL DISTRICT,

Appellant

v.

RAELEE S., by and through her parents and next friends, Heidi S. and Byron S.

___________

Appeal from the United States District Co urt for the Middle District of Pennsylvani a (D.C. Civ. No. 95-cv-01063)

___________

Argued June 4, 1996 Before: BECKER and MANSMANN, Circuit Jud ges, and BROTMAN, District Judge.*

(Filed September 18, l996

___________

Frank P. Clark, Esquire (ARGUED) James, Smith & Durkin 134 Sipe Avenue Hummelstown, PA 17036

COUNSEL FOR APPELLANT

Jefferson C. Crosby, Esquire (ARGUED) Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602

COUNSEL FOR APPELLEE

___________

OPINION OF THE COURT

__________

* Honorable Stanley S. Brotman of the United States District Court for the District of New Jersey, sitt ing by designation.MANSMANN, Circuit Judge.

This matter, arising under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 14 15 et seq., requires that we determine whether the parents of a student eligible for programs and services under the IDEA a re entitled to have their daughter's private school placement fund ed by the local public school district prior to the conclusio n of litigation establishing the propriety of that place ment. The case comes to us in an interlocutory posture; the p ublic school

district has asked us to review the district court' s order denying a Motion for Stay Pending Appeal. This den ial effectively directs that the student remain in the private school placement and that this placement be funded by the local public school district pending resolution of the merits of the underlying litigation. Because we conclude that th e district court properly declined to enter a stay, we will af firm the order

of the district court.

I. In the academic year 1994-1995, Raelee S., a learning disabled student within the meaning of the IDEA, en tered the ninth grade at Susquenita High School. In the summ er of 1994, the Susquenita school district had issued a Notice of Recommended Assignment ("NORA") to Raelee's parents and propose d an individualized education program ("IEP"). As of th e start of the school year, the parents had not accepted either do cument. Shortly after school began, however, the parents re jected the NORA and the proposed IEP, withdrew Raelee from Sus quenita, and placed her in a private school for the learning dis abled. They then invoked their right to a due process hearing p ursuant to section 1415(b)(2) of the IDEA in order to determin e whether Raelee had been properly placed and whether, accord ingly, they

were entitled to tuition reimbursement. In a decision announced in April 1995, the hearing officer found that the IEP which Susquenita had pro posed for Raelee was appropriate and that the school district should not be forced to bear the financial burden of the parents' unilateral decision to place Raelee in a private school. The parents appealed this decision to a three member state spec ial education appeals panel. On June 1, 1995, the panel reversed the hearing officer's decision, finding that the proposed IEP w as deficient in a number of respects and that "Raelee's educatio nal program was not reasonably calculated to provide for meanin gful education benefit." (Special Education Opinion No. 672, Type script at 13.) Addressing the private school placement, the panel wrote: Although the private school is dedicated t o the education of students with learning disabilities and therefore represents a mo re restrictive placement, we find that Raelee 's current needs in learning outweigh her nee d for integration with nondisabled peers. T hus we find the program offered by the privateschool appropriate for Raelee.

Id. The panel then moved to the crux of the issue which we now confront, writing: Parents have a right to withdraw their children from public school unilaterally . . . and receive reimbursement for privat e school tuition when a district has failed to provide an appropriate education and when the private school meets the substantive requirements of IDEA . . . . Thus we find that the parents claim for reimbursement o f tuition and transportation [for the academ ic year 1994-1995] are legally permissible.

Id. at 6. Also critical to this controversy is the panel's statement, in dicta, that "unless this order is ove rturned in a Commonwealth or federal district court, the private school placement shall be the pendent placement in any fut ure disputes between the parent and the District." Id. On July 3, 1995, Susquenita filed a Compla int in the Nature of an Appeal from the decision of the specia l education appeals panel. Jurisdiction was appropriate under the provisions of 20 U.S.C. § 1415(e)(2) which provides that "any p[arty] aggrieved by the findings and decision made [by a S tate educational agency] . . . shall have the right to b ring a civil

action . . . in a district court . . . ." In the complaint, Susquenita alleged that the education appeals panel improperly disregarded the credibilit y determinations made by the hearing officer, made fi ndings of fact not supported by the record, and, most importantly for purposes of this appeal, in identifying the private school a s Raelee's pendent placement and in awarding tuition reimburse ment. In a contemporaneous motion for stay pending appeal file d pursuant to Fed. R. Civ. P. 62(d) and (f), Susquenita asked tha t the district court stay the appeals panel decision "ins ofar as it directs Susquenita to reimburse the parents for exp enses and . . . states that Raelee's placement within the mea ning of 20 U.S.C. § 1415(e)(3) is a private school." The district court denied Susquenita's mot ion, noting that "Rule 62(d) requires an analysis similar to th at employed in evaluating a request for a preliminary injunction." (Typescript at 5.) The court identified four factors to be con sidered, including: 1) the movant's likelihood of success o n the merits; 2) whether the movant will suffer irreparable harm if the request is denied; 3) whether third parties will be harmed by the stay; and 4) whether granting the stay will serve the pub lic interest.

The district court evaluated each of these factors, concluding first that the likelihood of Susquenita' s success on the merits was very difficult to predict. The cour t found, however, that, "on the current state of the record made at the administrative level, we would conclude that the li kelihood of success favors Raelee S." (Typescript at 4.) The court also found the public interest factor difficult to evalu ate, statingthat while the public interest favored Raelee's rec eiving a free

and appropriate education, the state of the record made it

difficult to assess whether Raelee received such an education in the Susquenita School District. The court conclude d, however, that "were we compelled to make such an assessment at this juncture, we would be constrained to come down on t he side of [Raelee S.]." Id. The court next found that third parties would not be harmed if the stay were denied: The only harm which we can conceive of is the financial burden which will be borne by th e district during the pendency of this appea l. We have nothing before us to suggest that other students will be denied a proper or adequate education if the order compelling the district to fund her private school remains in effect during the pendency of t his appeal.

Id. Evaluating Susquenita's allegation of irre parable harm, the district court found that, under current casela w, the district would not be entitled to recover funds exp ended to maintain Raelee in private school even if it were t o prevail on appeal. The court thus found merit in Susquenita's argument that it would suffer irreparable harm if the stay were d enied. The court, however, did not find this prospect of harm sufficient to justify granting the stay. "Taken together, we fin d that the relevant considerations do not justify granting the stay requested by the district." (Typescript at 4.) Accordingly, the district court denied Sus quenita's motion for a stay and held that Raelee's "`current educational placement' for section 1415(e)(3) purposes will rem ain the private school . . . during the pendency of this ap peal and until further order of the court declaring otherwise." ( Typescript at 5). This holding also effectively decided the reim bursement question in favor of Raelee's parents. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291; we review the

district court's order under an abuse of discretion standard. Sierra Club v. Cedar Point Oil Co., 73 F.3d 546 (5t h Cir. 1996).

II. The broadest issues in this litigation are those relating to the adequacy of the IEP proposed by Sus quenita; these are the merits issues yet to be addressed by the di strict court. The issues underlying the district court's denial o f the stay are narrow, involving practical questions of where Rael ee should attend school while the review process proceeds, wh o must pay for Raelee's placement, and when that payment must be m ade. Susquenita argues that it has no financial obligati on to Raelee's parents because the private school is not the appro priate pendent placement. Alternatively, Susquenita contends that any financial obligation which it may have can be assessed only a t the end of the appellate process. These issues of pendent pla cement and financial responsibility are linked; in order to ev aluate thepayment questions, we must first assess the legal i mpact of the

education appeals panel directive that the private school be deemed Raelee's pendent placement during the review process.

III. The pendent placement concept is an import ant feature of the IDEA. In 1975 Congress enacted legislation appropriating funds to help states defray the cost of educating c hildren with disabilities. The IDEA, known originally as the Ed ucation of the Handicapped Act, was passed in order "to assure tha t all children

with disabilities have available to them . . . a fr ee appropriate public education which emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 14000(c). The IDEA resulted, in part, from a congr essional

determination that: handicapped children were not being proper ly educated and were, in most instances, excluded from the classroom. Congress concluded that the problem was the result not only of financial constraints at state and

local levels but was also due to state and

local laws which enabled school districts to

exclude children without consultation with their parents.

Thomas v. Cincinnati Board of Education, 918 F.2d 6 18, 619 (6th Cir. 1990). See also H.R. Rep. 332, 94th Cong., 1s t Sess. To be eligible for federal funding, states and local agencies are required by the IDEA to comply with fe deral guidelines and regulations established to ensure th e availability of a "free appropriate public education" for all of their disabled children. 20 U.S.C. § 1412(1). State and local compliance with the IDEA is monitored by federal re view, see 34 C.F.R. §§ 104.61, 100.7, and by procedural safeguar ds extended to handicapped children and their parents. These safe guards are meant to "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's ed ucation and the right to seek review of any decisions they thin k inappropriate". Honig v. Doe, 484 U.S. 305, 311-12 (1988). "Congress repeatedly emphasized throughout the Act the importance of parental participation in both the development o f the IEP and any subsequent assessments of its effectiveness. S ee §§ 1400(c), 1401(19), 1412(7), 1415(b)(1) (A), (C), (D), (E), a nd 1415(b)(2)." Id. Several of the Act's procedural safeguards are relevant to this case. First, the Act requires that a schoo l district give a child's parents written notice of any propos ed changes in the child's established educational program. 20 U. S.C. § 1415(b)(1)(C). If the parents object to proposed c hanges, they are authorized to seek an impartial administrative hearing on the matter, id. at § 1415(b)(2), and to appeal any adve rse decision to state or federal court. Id. at § 1415(e)(2). F inally, the Act requires that during the course of administrati ve and judicial proceedings, "the child shall remain in th e then currenteducational placement." Id. at 1415(e)(3). This r equirement has

come to be known as the IDEA's "pendent placement" or "stay put" provision. The pendent placement provision impacts to some degree virtually every case involving an administrative ch allenge under the IDEA. A child's placement during the course of administrative and judicial proceedings typically h as great significance for all concerned. "Where as in the p resent case review of a contested IEP takes years to run its co urse -- years critical to the child's development -- important pr actical questions arise concerning interim placement of the child and financial responsibility for that placement." Scho ol Comm. of the Town of Burlington v. Department of Educ., 471 U.S. 359, 361 (1985). The pendent placement provision was i ncluded in the IDEA to protect handicapped children and their pare nts during the review process. The Supreme Court referred to this protective purpose when it wrote: We think it clear . . . that Congress very much meant to strip schools of the unilate ral authority they had traditionally employed to

exclude disabled students . . . from schoo l.

Honig v. Doe, 484 U.S. at 323. A similar view of t he provision was articulated in Burlington, 471 U.S. at 373: We think at least one purpose of § 1415(e) (3) was to prevent school officials from remov ing a child from the regular public school classroom over the parents' objection pend ing completion of the review proceedings . . .

. [T]he impetus for the Act came from two federal-court decisions, Pennsylvania Assn

. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (E.D. Pa. 1971), and 343 F. Sup p. 279 (1972), and Mills v. Board of Educatio n of District of Columbia, 348 F. Supp. 866 (D.C. 1972), which arose from the efforts of parents of handicapped children to prevent the exclusion or expulsion of their childr en from the public schools. Congress was concerned about the apparently widespread practice of relegating handicapped childre n to private institutions or warehousing the m in special classes. We also note that § 1415(e)(3) is located in a section detaili ng procedural safeguards which are largely fo r the benefit of the parent and the child.

(citations omitted). We, too, have recognized the policy concerns underlying the pendent placement provision : The provision represents Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until thedispute with regard to their placement is

ultimately resolved.

Drinker v. Colonial School District, 78 F.3d 859, 8 64-65 (3d Cir. 1996) (citing Woods v. New Jersey Dep't of Educ., N o. 93-5123, 20 Indiv. Disabilities Educ. L. Rep. (LRP Publications ) 439, 440 (3d Cir. Sept. 17, 1993)). Given the protective purpose underlying th e pendent placement provision, it is often invoked by a child 's parents in order to maintain a placement where the parents dis agree with a change proposed by the school district; the provisi on is used to block school districts from effecting unilateral ch ange in a child's educational program. In cases of this type we have directed that "the dispositive factor in deciding a child's `current educational placement' should be the Indiv idualized Education Program . . . actually functioning when t he `stay put' is invoked." Drinker, 78 F.3d at 867 (quoting Wood s, 20 Indiv. Disabilities Educ. L. Rep. (LRP Publications) at 44 0). According to Susquenita, the last functioning IEP was in the public school system and, therefore, the public school placement must remain Raelee's pendent placement for the duration of this litigation. This case, however, differs from many in w hich a child's pendent placement is at issue. Here, it is the parents who advocate chang e. Mr. and Mrs. S. have no interest in having their daughter r emain in the public school system under the terms of either the former or the proposed IEP. Because Raelee's parents concluded t hat the program proposed for their daughter was inadequate and contrary to her best interest, they chose not to invoke the protection of the stay-put provision, opting instead to place Rae lee in a private school at their own expense. Prior to the time that the education appeals panel announced its decision, the n, the pendent placement provision was inoperative. At the time of her transfer to the private school, Raelee's parents did not dispute that the public sc hool would have been the appropriate pendent placement within the meaning of the IDEA. The parents argue, however, that the pen dent placement and, therefore, the financial responsibility landsc ape was altered when the state education appeals panel rule d in their favor on June 1, 1995. We agree. In its decision the appeals panel found th at the IEP which Susquenita proposed for Raelee was inadequate and that the private school placement was appropriate. The pane l directed that the private school be deemed Raelee's pendent placement in any future disputes "unless the [panel] order is ov erturned in a Commonwealth or federal district court." (Typescri pt at 14 n.27). Relying on this panel directive, the parent s argue that a new pendent placement was created and that, from th e time of the panel decision forward, Susquenita is required to b ear the financial burden of maintaining Raelee at the priva te school. The parents' position is derived directly from the language of the statute. As we have noted, section 1415(e)(3) of the Act reads as follows: "During the pendency of any proc eedings conducted pursuant to this section, unless the stat e or localeducational agency and the parents or guardian othe rwise agree,

the child shall remain in the then current educatio nal placement.

. . ." The decision of the Supreme Court in Burli ngtonestablished that a ruling by the education appeals panel in favor of the parents' position constitutes agreement for purposes of section 1415(e)(3). In Burlington, the Supreme Cou rt noted that while parents who unilaterally remove their child f rom a prior placement contravene[] the conditional command of § 1415(e)(3) that "the child remain in the t hen current educational placement,' . . . we n ote that the section calls for agreement by

either the state or the local educational agency. The [appellate panel]'s decision in favor of the [parents] and the [private school] placements would seem to constitut e agreement by the state to the change of placement.

471 U.S. at 372. Susquenita argues that a pendent placement appropriate at the outset of administrative proceedings is fixe d for the duration of the proceedings and cannot be altered b y an administrative ruling in the parents' favor. Accep ting this position would contravene the language of the statu te and the holding in Burlington. Furthermore, it would mean that the panel decision in favor of the parents is of no practical significance unless and until it is affirmed by a decision that cannot be or is not appealed. As we have explained, section 1415(e)(3) w as drafted to guard the interests of parents and their children. We cannot agree that this same section should be used here as a weapon by the Susquenita School District to force parents to maintain a child in a public school placement which the state appeals panel has held inappropriate. It is undisputed that once there is state agreement with respect to pendent placement, a fortiori, financial responsibility on the part of the local s chool district follows. Thus, from the point of the panel decisio n forward -- academic years 1995-1996 and following -- Raelee's pendent placement, by agreement of the state, is the privat e school and Susquenita is obligated to pay for that placement.

IV. Resolution of the pendent placement questi on does not end our discussion. Susquenita contends that even if the appeals panel decision is construed as an agreement to a "n ew" pendent placement giving rise to financial responsibility o n the part of the school district, this responsibility is not imm ediate. According to Susquenita, the Supreme Court's decisi on in Burlington mandates that prospective tuition reimbu rsement or reimbursement "pendente lite" be barred under the I DEA; without exception, Susquenita argues, parents initiating an administrative challenge under the IDEA must bear t he financialburden of alternative placement until such time as the propriety

of that placement is conclusively established. We decline to adopt this restrictive reading of the Court's holdi ng in Burlington; we conclude that a school district may be required to pay for tuition and expenses associated with a pend ent placement prior to the conclusion of litigation. Although Burlington arose in a procedural context which made discussion of retroactive reimbursement approp riate, we believe that the concerns underlying that decision apply with equal force to tuition payments coming due during t he pendency of litigation. Thus, while the holding in Burlington is not controlling in this case, the analysis employed and concerns expressed by the Supreme Court are useful in resolv ing the issue now before us. In Burlington, the Supreme Court ad dressed two narrow questions: "Whether the potential relief av ailable under § 1415(e)(3) includes reimbursement to parents for private school tuition and related expenses, and whether § 1415(e) (3) bars such reimbursement to parents who reject a proposed IEP and place the child in a private school without the consent of lo cal school authorities." Burlington, 471 U.S. at 367. The Court first reviewed the purposes unde rlying the IDEA and concluded that the grant of authority to t he reviewing court set forth in section 1415(e)(2) is sufficient ly broad to include the power to order school authorities to re imburse parents for private school expenditures where the c ourt ultimately determines that private, rather than pub lic, education under a proposed IEP is appropriate. The Court rea soned as

follows: A final judicial decision on the merits of an IEP will in most instances come a year or more after the school term covered by the IEP has passed. In the meantime, the parents who disagree with the proposed IEP are faced w ith a choice: go along with the IEP to the

detriment of their child if it turns out t o be inappropriate or to pay for what they consider to be the appropriate placement. If they choose the latter course . . . it wou ld be an empty victory to have a court tell t hem several years later that they were right b ut that these expenditures could not in a pro per case be reimbursed. . . . If that were th e case, the child's right to a free appropri ate public education, the parents' right to participate fully in developing a proper I EP and all of the procedural safeguards would be less than complete.

471 U.S. at 370. Having established that reimbursement may be ordered where a private school placement is found to be app ropriate, the Court then held that parents who initially decline the pendent placement protection of section 1415(e)(3) do not a utomatically forfeit their right to reimbursement. The Court ex plained thatsection 1415(e)(3) does not speak to financial resp onsibility or

to a parent's right to reimbursement at the close o f judicial proceedings: If the provision is interpreted to cut off parental rights to reimbursement, the principal purpose of the Act will in many cases be defeated in the same way as if

reimbursement were never available . . . . [Parents would be] forced to leave the chi ld in what may turn out to be an inappropriat e educational placement or to obtain the appropriate placement only by sacrificing any claim for reimbursement.

Id. at 372. While we recognize that Burlington dealt w ith retroactive relief, we do not believe that the Supr eme Court's analysis should be confined to those cases arising in a procedural context identical to that presented in B urlington. We conclude that the policies underlying the IDEA and its administrative process favor imposing financial res ponsibility upon the local school district as soon as there has been an administrative panel or judicial decision establish ing the pendent placement. Nothing in the Act or in its legislative h istory convinces us that Congress intended to shield schoo l districts from financial responsibility prior to the close of litigation. The IDEA was enacted to guarantee handicapped child ren a free and appropriate education and its legislative history i s devoid of any indication that Congress intended to limit the timing of a school district's financial obligations in accordan ce with some pre-determined formula. Resolution of financial di sputes is not governed by rigid rules but is, instead, committed to the administrative process. If a parent contends that he or she has be en forced, at that parent's own expense, to s eek private schooling for the child because an appropriate program does not exist within the local educational agency and the . . . age ncy disagrees, that disagreement and the quest ion of who remains financially responsible is a matter to which the due process procedures . . . app[ly].

S. Rep. No. 94-168 p. 32 (1975), U.S. Code Cong. & Admin. News 1975 pp. 1425, 1456. In fashioning remedies under the IDEA, the courts are directed to "grant such relief as [they] deem[] app ropriate." 20 U.S.C. § 1415(e)(3). The Supreme Court in Burlingt on fleshed out the contours of "appropriate relief" when it wrote: The ordinary meaning of these words confer s broad discretion on the court. The type of relief is not further specified except tha t it must be "appropriate." Absent otherreference, the only possible interpretatio n

is that the relief is to be "appropriate" in light of the purposes of the Act. As alre ady noted, this is principally to provide handicapped children with "a free appropri ate public education which emphasizes special education and related services designed to meet their unique needs." The Act contemplates that such education will be provided where possible in regular public schools . . . but the Act also provides fo r placement in private schools at public expense where this is not possible. In a case where a court determines that a priva te placement desired by the parents was prope r under the Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the schoo l officials to develop and implement at publ ic expense an IEP placing the child in a priv ate

school. . . . If the administrative and judicial review under the Act could be completed in a matter of weeks, rather tha n years, it would be difficult to imagine a case in which prospective injunctive relie f

would not be sufficient.

471 U.S. 369-70. Delay, however, is inevitable and this del ay carries with it financial consequences. Concluding that "a ppropriate

relief" under the IDEA includes retroactive tuition reimbursement, the Court explained that where paren ts elect to pay for what they believe is an appropriate placeme nt, it would be an empty victory to have a cou rt tell them several years later that they we re right but that these expenditures could no t

. . . be reimbursed . . . . If that were the case, the child's right to a free appropri ate public education, the parents' right to participate fully in developing a proper I EP, and all of the procedural safeguards would be less than complete. Because Congress undoubtedly did not intend this result, we are confident that by empowering the court to grant "appropriate" relief Congress meant to include retroactive reimbursement to paren ts as an available remedy in a proper case.

Id. We are convinced that the concerns cited by th e Court in support of retroactive reimbursement favor includin g the interim assessment of financial responsibility in the range of relief

available under the IDEA.In this case, as in many other cases, whil e parents

wait for the merits of their case to be addressed t hrough the process of administrative and judicial review, they who disagree with an IEP proposal for their child must make a ch oice. They may have the child remain in what they believe to b e an inappropriate placement or they may elect to pay fo r what they deem appropriate. This choice is real only for par ents who have the financial wherewithal to pay for alternative pl acement. While parents who reject a proposed IEP bear the in itial expenses of a unilateral placement, the school district's fi nancial responsibility should begin when there is an admini strative or judicial decision vindicating the parents' position . The purpose of the Act, which is to ensure that every c hild receive a "free and appropriate education" is not advanced by requiring parents, who have succeeded in obtaining a ruling t hat a proposed IEP is inadequate, to front the funds for continued private

education. The burden that such an approach would pla ce on many families is overwhelming. The cost of private educ ation, especially in institutions specializing in teaching the learning disabled, is substantial. Families without means w ould be hard pressed to pay for private education in what will a lmost invariably be the significant time lapse between a ruling in their favor and the ultimate close of litigation. "The review process is ponderous." Burlington, 471 U.S. at 370 . Without interim financial support, a parent's "choice" to h ave his child remain in what the state has determined to be an ap propriate private school placement amounts to no choice at al l. The prospect of reimbursement at the end of the litigat ion turnpike is of little consolation to a parent who cannot pay the toll at

the outset. In concluding that the school district can not avoid interim responsibility for funding what the state h as agreed is an appropriate pendent placement, we are mindful of the financial burden which will, in some instances, be borne by l ocal school districts. At the risk of seeming cavalier, howeve r, we adopt the Supreme Court's statement in Florence County Sc hool District Four v. Carter, 114 S. Ct. 361, 366 (1993): There is no doubt that Congress has impose d a significant financial burden on the States and school districts that participate in IDEA. Yet public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropri ate private setting of the State's choice. Th is is IDEA's mandate, and school officials wh o conform to it need not worry about

reimbursement claims.V.

Our holding in this matter has three compo nents. First, the private school placement, by virtue of t he education appeals panel decision, is the appropriate pendent placement for purposes of 20 U.S.C. § 1415(e)(3). Second, the Su squenita School District is required to fund that placement. Finally, the district's financial obligations with respect to th e pendent placement are immediate and may not be deferred unt il the close of litigation. These requirements are distilled fr om the unambiguous language of the IDEA, the Act's legisla tive history, and the caselaw interpreting the Act. Given the cl arity of the law with respect to the issues before us, we have n o difficulty concluding that the district court's denial of Susq uenita's motion for stay was consistent with the sound exerc ise of judicial discretion. We will, therefore, affirm th e order of the

district court.