1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-18-1996

Susquenita Sch Dist v. S.

Precedential or Non-Precedential:

Docket 95-7575

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Recommended Citation

"Susquenita Sch Dist v. S." (1996). 1996 Decisions. Paper 76.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/76
 UNITED 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 Court 

 for the Middle District of Pennsylvania 

 (D.C. Civ. No. 95-cv-01063) 

 ___________ 

 

 Argued 

 June 4, 1996 

 Before: BECKER and MANSMANN, Circuit Judges, 

 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, sitting by 

designation. 
MANSMANN, Circuit Judge. 

 This matter, arising under the Individuals with 

Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415 et seq., 

requires that we determine whether the parents of a student 

eligible for programs and services under the IDEA are entitled to 

have their daughter's private school placement funded by the 

local public school district prior to the conclusion of 

litigation establishing the propriety of that placement. The 

case comes to us in an interlocutory posture; the public school 

district has asked us to review the district court's order 

denying a Motion for Stay Pending Appeal. This denial 

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 the district 

court properly declined to enter a stay, we will affirm 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, entered the 

ninth grade at Susquenita High School. In the summer of 1994, 

the Susquenita school district had issued a Notice of Recommended 

Assignment ("NORA") to Raelee's parents and proposed an 

individualized education program ("IEP"). As of the start of the 

school year, the parents had not accepted either document. 

Shortly after school began, however, the parents rejected the 

NORA and the proposed IEP, withdrew Raelee from Susquenita, and 

placed her in a private school for the learning disabled. They 

then invoked their right to a due process hearing pursuant to 

section 1415(b)(2) of the IDEA in order to determine whether 

Raelee had been properly placed and whether, accordingly, they 

were entitled to tuition reimbursement. 

 In a decision announced in April 1995, the hearing 

officer found that the IEP which Susquenita had proposed 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 special education 

appeals panel. On June 1, 1995, the panel reversed the hearing 

officer's decision, finding that the proposed IEP was deficient 

in a number of respects and that "Raelee's educational program 

was not reasonably calculated to provide for meaningful education 

benefit." (Special Education Opinion No. 672, Typescript at 13.) 

Addressing the private school placement, the panel wrote: 

 Although the private school is dedicated to 

 the education of students with learning 

 disabilities and therefore represents a more 

 restrictive placement, we find that Raelee's 

 current needs in learning outweigh her need 

 for integration with nondisabled peers. Thus 

 we find the program offered by the private
 school 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 private 

 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 of 

 tuition and transportation [for the academic 

 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 overturned in a 

Commonwealth or federal district court, the private school 

placement shall be the pendent placement in any future disputes 

between the parent and the District." Id. 

 On July 3, 1995, Susquenita filed a Complaint in the 

Nature of an Appeal from the decision of the special 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 State 

educational agency] . . . shall have the right to bring a civil 

action . . . in a district court . . . ." 

 In the complaint, Susquenita alleged that the education 

appeals panel improperly disregarded the credibility 

determinations made by the hearing officer, made findings of fact 

not supported by the record, and, most importantly for purposes 

of this appeal, in identifying the private school as Raelee's 

pendent placement and in awarding tuition reimbursement. In a 

contemporaneous motion for stay pending appeal filed pursuant to 

Fed. R. Civ. P. 62(d) and (f), Susquenita asked that the 

district court stay the appeals panel decision "insofar as it 

directs Susquenita to reimburse the parents for expenses and 

. . . states that Raelee's placement within the meaning of 20 

U.S.C. § 1415(e)(3) is a private school." 

 The district court denied Susquenita's motion, noting 

that "Rule 62(d) requires an analysis similar to that employed in 

evaluating a request for a preliminary injunction." (Typescript 

at 5.) The court identified four factors to be considered, 

including: 1) the movant's likelihood of success on 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 public 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 court found, 

however, that, "on the current state of the record made at the 

administrative level, we would conclude that the likelihood of 

success favors Raelee S." (Typescript at 4.) The court also 

found the public interest factor difficult to evaluate, stating 
that while the public interest favored Raelee's receiving 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 concluded, however, 

that "were we compelled to make such an assessment at this 

juncture, we would be constrained to come down on the 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 the 

 district during the pendency of this appeal. 

 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 this 

 appeal. 

Id. 

 Evaluating Susquenita's allegation of irreparable harm, 

the district court found that, under current caselaw, the 

district would not be entitled to recover funds expended to 

maintain Raelee in private school even if it were to prevail on 

appeal. The court thus found merit in Susquenita's argument that 

it would suffer irreparable harm if the stay were denied. The 

court, however, did not find this prospect of harm sufficient to 

justify granting the stay. "Taken together, we find that the 

relevant considerations do not justify granting the stay 

requested by the district." (Typescript at 4.) 

 Accordingly, the district court denied Susquenita's 

motion for a stay and held that Raelee's "`current educational 

placement' for section 1415(e)(3) purposes will remain the 

private school . . . during the pendency of this appeal and until 

further order of the court declaring otherwise." (Typescript at 

5). This holding also effectively decided the reimbursement 

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 (5th Cir. 1996). 

 II. 

 The broadest issues in this litigation are those 

relating to the adequacy of the IEP proposed by Susquenita; these 

are the merits issues yet to be addressed by the district court. 

The issues underlying the district court's denial of the stay are 

narrow, involving practical questions of where Raelee should 

attend school while the review process proceeds, who must pay for 

Raelee's placement, and when that payment must be made. 

Susquenita argues that it has no financial obligation to Raelee's 

parents because the private school is not the appropriate pendent 

placement. Alternatively, Susquenita contends that any financial 

obligation which it may have can be assessed only at the end of 

the appellate process. These issues of pendent placement and 

financial responsibility are linked; in order to evaluate the 
payment questions, we must first assess the legal impact 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 important feature 

of the IDEA. In 1975 Congress enacted legislation appropriating 

funds to help states defray the cost of educating children with 

disabilities. The IDEA, known originally as the Education of the 

Handicapped Act, was passed in order "to assure that all children 

with disabilities have available to them . . . a free 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 congressional 

determination that: 

 handicapped children were not being properly 

 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 618, 619 (6th 

Cir. 1990). See also H.R. Rep. 332, 94th Cong., 1st Sess. 

 To be eligible for federal funding, states and local 

agencies are required by the IDEA to comply with federal 

guidelines and regulations established to ensure the 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 review, see 34 

C.F.R. §§ 104.61, 100.7, and by procedural safeguards extended to 

handicapped children and their parents. These safeguards are 

meant to "guarantee parents both an opportunity for meaningful 

input into all decisions affecting their child's education and 

the right to seek review of any decisions they think 

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 of the IEP and 

any subsequent assessments of its effectiveness. See §§ 1400(c), 

1401(19), 1412(7), 1415(b)(1) (A), (C), (D), (E), and 

1415(b)(2)." Id. 

 Several of the Act's procedural safeguards are relevant 

to this case. First, the Act requires that a school district 

give a child's parents written notice of any proposed changes in 

the child's established educational program. 20 U.S.C. § 

1415(b)(1)(C). If the parents object to proposed changes, they 

are authorized to seek an impartial administrative hearing on the 

matter, id. at § 1415(b)(2), and to appeal any adverse decision 

to state or federal court. Id. at § 1415(e)(2). Finally, the 

Act requires that during the course of administrative and 

judicial proceedings, "the child shall remain in the then current 
educational placement." Id. at 1415(e)(3). This requirement 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 challenge under 

the IDEA. A child's placement during the course of

administrative and judicial proceedings typically has great 

significance for all concerned. "Where as in the present case 

review of a contested IEP takes years to run its course -- years 

critical to the child's development -- important practical 

questions arise concerning interim placement of the child and 

financial responsibility for that placement." School Comm. of 

the Town of Burlington v. Department of Educ., 471 U.S. 359, 361 

(1985). The pendent placement provision was included in the 

IDEA to protect handicapped children and their parents 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 unilateral 

 authority they had traditionally employed to 

 exclude disabled students . . . from school. 

Honig v. Doe, 484 U.S. at 323. A similar view of the 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 removing 

 a child from the regular public school 

 classroom over the parents' objection pending 

 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. Supp. 

 279 (1972), and Mills v. Board of Education 

 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 children 

 from the public schools. Congress was 

 concerned about the apparently widespread 

 practice of relegating handicapped children 

 to private institutions or warehousing them 

 in special classes. We also note that § 

 1415(e)(3) is located in a section detailing 

 procedural safeguards which are largely for 

 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 the 
 dispute with regard to their placement is 

 ultimately resolved. 

Drinker v. Colonial School District, 78 F.3d 859, 864-65 (3d Cir. 

1996) (citing Woods v. New Jersey Dep't of Educ., No. 93-5123, 20 

Indiv. Disabilities Educ. L. Rep. (LRP Publications) 439, 440 (3d 

Cir. Sept. 17, 1993)). 

 Given the protective purpose underlying the pendent 

placement provision, it is often invoked by a child's parents in 

order to maintain a placement where the parents disagree with a 

change proposed by the school district; the provision is used to 

block school districts from effecting unilateral change 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 Individualized 

Education Program . . . actually functioning when the `stay put' 

is invoked." Drinker, 78 F.3d at 867 (quoting Woods, 20 Indiv. 

Disabilities Educ. L. Rep. (LRP Publications) at 440). 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 which a 

child's pendent placement is at issue. 

 Here, it is the parents who advocate change. Mr. and 

Mrs. S. have no interest in having their daughter remain in the 

public school system under the terms of either the former or the 

proposed IEP. Because Raelee's parents concluded that 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 Raelee in a 

private school at their own expense. Prior to the time that the 

education appeals panel announced its decision, then, 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 school would 

have been the appropriate pendent placement within the meaning of 

the IDEA. The parents argue, however, that the pendent placement 

and, therefore, the financial responsibility landscape was 

altered when the state education appeals panel ruled in their 

favor on June 1, 1995. We agree. 

 In its decision the appeals panel found that the IEP 

which Susquenita proposed for Raelee was inadequate and that the 

private school placement was appropriate. The panel directed 

that the private school be deemed Raelee's pendent placement in 

any future disputes "unless the [panel] order is overturned in a 

Commonwealth or federal district court." (Typescript at 14 

n.27). Relying on this panel directive, the parents argue that a 

new pendent placement was created and that, from the time of the 

panel decision forward, Susquenita is required to bear the 

financial burden of maintaining Raelee at the private 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 proceedings 

conducted pursuant to this section, unless the state or local 
educational agency and the parents or guardian otherwise agree, 

the child shall remain in the then current educational placement. 

. . ." 

 The decision of the Supreme Court in Burlingtonestablished 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 Court noted that 

while parents who unilaterally remove their child from a prior 

placement 

 contravene[] the conditional command of § 

 1415(e)(3) that "the child remain in the then 

 current educational placement,' . . . we note 

 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 constitute 

 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 fixed for the 

duration of the proceedings and cannot be altered by an 

administrative ruling in the parents' favor. Accepting this 

position would contravene the language of the statute 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) was 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 school district 

follows. Thus, from the point of the panel decision forward -- 

academic years 1995-1996 and following -- Raelee's pendent 

placement, by agreement of the state, is the private school and 

Susquenita is obligated to pay for that placement. 

 IV. 

 Resolution of the pendent placement question does not 

end our discussion. Susquenita contends that even if the appeals 

panel decision is construed as an agreement to a "new" pendent 

placement giving rise to financial responsibility on the part of 

the school district, this responsibility is not immediate. 

According to Susquenita, the Supreme Court's decision in 

Burlington mandates that prospective tuition reimbursement or 

reimbursement "pendente lite" be barred under the IDEA; without 

exception, Susquenita argues, parents initiating an

administrative challenge under the IDEA must bear the financial 
burden 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 holding in 

Burlington; we conclude that a school district may be required to 

pay for tuition and expenses associated with a pendent placement 

prior to the conclusion of litigation. 

 Although Burlington arose in a procedural context which 

made discussion of retroactive reimbursement appropriate, we 

believe that the concerns underlying that decision apply with 

equal force to tuition payments coming due during the 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 resolving the issue 

now before us. In Burlington, the Supreme Court addressed two 

narrow questions: "Whether the potential relief available 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 local school 

authorities." Burlington, 471 U.S. at 367. 

 The Court first reviewed the purposes underlying the 

IDEA and concluded that the grant of authority to the reviewing 

court set forth in section 1415(e)(2) is sufficiently broad to 

include the power to order school authorities to reimburse 

parents for private school expenditures where the court 

ultimately determines that private, rather than public, education 

under a proposed IEP is appropriate. The Court reasoned 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 with 

 a choice: go along with the IEP to the 

 detriment of their child if it turns out to 

 be inappropriate or to pay for what they 

 consider to be the appropriate placement. If 

 they choose the latter course . . . it would 

 be an empty victory to have a court tell them 

 several years later that they were right but 

 that these expenditures could not in a proper 

 case be reimbursed. . . . If that were the 

 case, the child's right to a free appropriate 

 public education, the parents' right to 

 participate fully in developing a proper IEP 

 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 appropriate, the 

Court then held that parents who initially decline the pendent 

placement protection of section 1415(e)(3) do not automatically 

forfeit their right to reimbursement. The Court explained that 
section 1415(e)(3) does not speak to financial responsibility or 

to a parent's right to reimbursement at the close of 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 child 

 in what may turn out to be an inappropriate 

 educational placement or to obtain the 

 appropriate placement only by sacrificing any 

 claim for reimbursement. 

Id. at 372. 

 While we recognize that Burlington dealt with 

retroactive relief, we do not believe that the Supreme Court's 

analysis should be confined to those cases arising in a 

procedural context identical to that presented in Burlington. We 

conclude that the policies underlying the IDEA and its 

administrative process favor imposing financial responsibility 

upon the local school district as soon as there has been an 

administrative panel or judicial decision establishing the 

pendent placement. 

 Nothing in the Act or in its legislative history 

convinces us that Congress intended to shield school districts 

from financial responsibility prior to the close of litigation. 

The IDEA was enacted to guarantee handicapped children a free and 

appropriate education and its legislative history is devoid of 

any indication that Congress intended to limit the timing of a 

school district's financial obligations in accordance with some 

pre-determined formula. Resolution of financial disputes is not 

governed by rigid rules but is, instead, committed to the 

administrative process. 

 If a parent contends that he or she has been 

 forced, at that parent's own expense, to seek 

 private schooling for the child because an

 appropriate program does not exist within the 

 local educational agency and the . . . agency 

 disagrees, that disagreement and the question 

 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[] appropriate." 20 

U.S.C. § 1415(e)(3). The Supreme Court in Burlington fleshed out 

the contours of "appropriate relief" when it wrote:

 The ordinary meaning of these words confers 

 broad discretion on the court. The type of

 relief is not further specified except that 

 it must be "appropriate." Absent other 
 reference, the only possible interpretation 

 is that the relief is to be "appropriate" in 

 light of the purposes of the Act. As already 

 noted, this is principally to provide 

 handicapped children with "a free appropriate 

 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 for 

 placement in private schools at public 

 expense where this is not possible. In a 

 case where a court determines that a private 

 placement desired by the parents was proper 

 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 school 

 officials to develop and implement at public 

 expense an IEP placing the child in a private 

 school. . . . If the administrative and 

 judicial review under the Act could be 

 completed in a matter of weeks, rather than 

 years, it would be difficult to imagine a 

 case in which prospective injunctive relief 

 would not be sufficient. 

471 U.S. 369-70. 

 Delay, however, is inevitable and this delay carries 

with it financial consequences. Concluding that "appropriate 

relief" under the IDEA includes retroactive tuition

reimbursement, the Court explained that where parents elect to 

pay for what they believe is an appropriate placement, 

 it would be an empty victory to have a court 

 tell them several years later that they were 

 right but that these expenditures could not 

 . . . be reimbursed . . . . If that were the 

 case, the child's right to a free appropriate 

 public education, the parents' right to 

 participate fully in developing a proper IEP, 

 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 parents 

 as an available remedy in a proper case. 

Id. We are convinced that the concerns cited by the Court in 

support of retroactive reimbursement favor including the interim 

assessment of financial responsibility in the range of relief 

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

wait for the merits of their case to be addressed through the 

process of administrative and judicial review, they who disagree 

with an IEP proposal for their child must make a choice. They 

may have the child remain in what they believe to be an 

inappropriate placement or they may elect to pay for what they 

deem appropriate. This choice is real only for parents who have 

the financial wherewithal to pay for alternative placement. 

While parents who reject a proposed IEP bear the initial expenses 

of a unilateral placement, the school district's financial 

responsibility should begin when there is an administrative or 

judicial decision vindicating the parents' position. The 

purpose of the Act, which is to ensure that every child receive a 

"free and appropriate education" is not advanced by requiring 

parents, who have succeeded in obtaining a ruling that a proposed 

IEP is inadequate, to front the funds for continued private 

education. 

 The burden that such an approach would place on many 

families is overwhelming. The cost of private education, 

especially in institutions specializing in teaching the learning 

disabled, is substantial. Families without means would be hard 

pressed to pay for private education in what will almost 

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 have his child 

remain in what the state has determined to be an appropriate 

private school placement amounts to no choice at all. The 

prospect of reimbursement at the end of the litigation turnpike 

is of little consolation to a parent who cannot pay the toll at 

the outset. 

 In concluding that the school district cannot avoid 

interim responsibility for funding what the state has agreed is 

an appropriate pendent placement, we are mindful of the financial 

burden which will, in some instances, be borne by local school 

districts. At the risk of seeming cavalier, however, we adopt 

the Supreme Court's statement in Florence County School District 

Four v. Carter, 114 S. Ct. 361, 366 (1993): 

 There is no doubt that Congress has imposed 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 appropriate 

 private setting of the State's choice. This 

 is IDEA's mandate, and school officials who 

 conform to it need not worry about 

 reimbursement claims. 
 V. 

 Our holding in this matter has three components. 

First, the private school placement, by virtue of the education 

appeals panel decision, is the appropriate pendent placement for 

purposes of 20 U.S.C. § 1415(e)(3). Second, the Susquenita 

School District is required to fund that placement. Finally, the 

district's financial obligations with respect to the pendent 

placement are immediate and may not be deferred until the close 

of litigation. These requirements are distilled from the 

unambiguous language of the IDEA, the Act's legislative history, 

and the caselaw interpreting the Act. Given the clarity of the 

law with respect to the issues before us, we have no difficulty 

concluding that the district court's denial of Susquenita's 

motion for stay was consistent with the sound exercise of 

judicial discretion. We will, therefore, affirm the order of the 

district court.