                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-12-1996

Drinker v. Colonial School District
Precedential or Non-Precedential:

Docket 95-1201




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          No. 95-1201


        DANIEL DRINKER, by his parents and next friends
        Ned Drinker and Diane Drinker, and the Parents;
        NED DRINKER; DIANE DRINKER, on their own behalf

                               v.

           COLONIAL SCHOOL DISTRICT; STANLEY J. DURTAN,
        individually and in his capacity as Superintendent
       of Schools; FRED G. SHIPMAN, individually and in his
    capacity as Director of Pupil Services; RITA M. GREELEY,
        individually and in her capacity as Coordinator of
     Special Education; STUART KESSLER, individually and in
          his capacity as President of the School Board;
        JACK PINHEIRO, individually and in his capacity as
      Vice-President of the School Board; LENORA CICCALONE;
       RICHARD CONNOLLY; ALLEN MANDELBAUM; ROBERT O'NEILL;
        MARC ORLOW; DIANE RAMBO, individually and in their
            capacities as Members of the School Board,

                                        Appellants



        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                (D.C. Civil Action No. 94-07101)


                    Argued January 29, 1996

     BEFORE:   GREENBERG, NYGAARD, and LAY,0 Circuit Judges

                    (Filed: March 12, 1996)


                                Andrew E. Faust (argued)
                                Sweet, Stevens, Tucker & Katz
                                116 East Court Street
                                Doylestown, PA 18901



0
Honorable Donald P. Lay, Senior Judge of the United States Court
   of Appeals for the Eighth Circuit, sitting by designation.

                               1
                                           Attorneys for Appellants

                                   Frank J. Laski (argued)
                                   Barbara E. Ransom
                                   Public Interest Law Center
                                           of Philadelphia
                                   125 South 9th Street, Suite 700
                                   Philadelphia, PA 19107

                                           Attorneys for Appellees




                         OPINION OF THE COURT



GREENBERG, Circuit Judge.
             This case arises under the Individuals with

Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-85.

Appellees Ned and Diane Drinker brought the case individually,

and as parents and next friends of their son, Daniel, against the

appellants Colonial School District and certain of its officials,

seeking a preliminary injunction requiring the defendants to keep

Daniel at Gladwyne Elementary School in the Lower Merion School

District.0    As a matter of convenience we will refer to
appellants collectively as "Colonial."     The district court had

jurisdiction under the IDEA, 20 U.S.C. § 1415(e)(4)(A), and 28

U.S.C. §§ 1331, 1343.     We have jurisdiction over the appeal from

the district court's final order dated February 13, 1995,

granting in part and denying in part the Drinkers' motion for a

preliminary injunction and entering judgment in favor of the


0
 Daniel and his parents also sued the Superintendent of the
Colonial School District, the Director of Pupil Services, and the
members of the school board.


                                  2
Drinkers on Count II of their complaint, since the district

court's order terminated the litigation in that court.       28 U.S.C.

§ 1291.     We will affirm the district court's order, and remand

the case for the entry of orders in accordance with our opinion.



            I.   FACTUAL BACKGROUND AND PROCEDURAL HISTORY

            Daniel Drinker,0 a ten-year-old child born with Down's

Syndrome and cerebral palsy, has received special education and

related services since he was an infant.    Since the summer of

1992, Daniel's family has resided in the Colonial School

District.    Colonial first evaluated Daniel for special education

services that summer and, consistent with that evaluation,

prepared an individual education program (IEP) for Daniel with

the help of his parents on October 21, 1992.    At that time,

Colonial placed Daniel in a full-time learning support class at

the Gladwyne Elementary School in the neighboring Lower Merion

School District because Colonial lacked the means to educate

Daniel in its own schools.    It cost roughly $25,000 per year to

send Daniel to Gladwyne.

            In 1993, Colonial developed a special education program

in its own schools into which it wished to place Daniel.

Accordingly, on July 30, 1993, Colonial issued a Notice of

Recommended Assignment (NORA) to Daniel's parents indicating that

it intended to move Daniel to a full-time learning support class


0
 We normally would not publish the name of a child involved in
IDEA proceedings. However, because the district court did so in
its published opinion, we see no utility in our own redaction.


                                  3
at Whitemarsh Elementary, a school within the Colonial District

in September 1993.0   The Drinkers protested the change and

invoked their hearing rights under the IDEA.0   20 U.S.C.

§1415(b)(2).   Dr. Carroll Redfern, a Pennsylvania impartial

hearing officer, conducted a hearing on the issue on November 1,

1993.   In his decision, Dr. Redfern concluded that Colonial could

change Daniel's placement to Whitemarsh Elementary School, but

0
 As noted in Drinkers' brief, Colonial violated Daniel's rights
under the IDEA by unilaterally altering Daniel's NORA. Br. at 14
n.10. The state appeals panel noted as much in its March 17,
1994 opinion:

          [T]he district, by unilaterally altering
          Daniel's NORA and, by implication, his IEP,
          has lost an opportunity to treat Daniel's
          change in schools as anything other than a
          change in placement. We advise the district
          that the hearing officer erred in finding
          that no procedural violations occurred. The
          district may not alter, unilaterally, an
          agreed upon NORA or IEP . . . .

App. at 13. We note the issue here merely as part of our summary
of facts, as it has not been raised for our review.
0
  Under the Pennsylvania regulations implementing the IDEA,
parents may request an impartial due process hearing

          concerning the identification, evaluation or
          educational placement of, or the provision of
          a free appropriate public education to, a
          student who is exceptional or who is thought
          to be exceptional or a young child who is
          eligible or who is thought to be eligible, if
          the parents disagree with the school
          district's identification, evaluation or
          placement of, or the provision of a free
          appropriate public education to, the student
          or young child.

22 Pa. Code § 14.64 (1993); see also 34 C.F.R. §§ 300.504,
300.506 (1995). Under the Pennsylvania regulations, Daniel
qualifies for special education as an "exceptional student."   See
22 Pa. Code §§ 14.1, 342.1.


                                 4
not until the beginning of the 1994-1995 school year and not

until it completed a transition plan.   Colonial thought the delay

recommended by Dr. Redfern before Daniel's transition to

Whitemarsh was too long and appealed the decision to the state

education agency.   The Drinkers did not appeal the decision of

Dr. Redfern.0

          On March 17, 1994, a three-judge administrative appeals

panel issued an opinion agreeing with Colonial that Dr. Redfern's
0
 There is some dispute as to why the Drinkers did not appeal the
hearing officer's decision that Colonial could proceed with the
placement change in Daniel's program. In their brief, the
Drinkers state that the hearing officer "ordered the parents and
the District to use the spring semester to prepare a transition
plan for Daniel to move into a Colonial School District site in
the fall." Br. at 5 (citing Hearing Officer Decision, App. at
11). Apparently, the suggestion here is that Dr. Redfern did not
specifically order placement at Whitemarsh, but only placement at
a school within the Colonial District:

          Despite the characterization of Whitemarsh as
          the stay put placement by the second appeals
          panel, . . . Dr. Redfern's order never
          mentioned Whitemarsh Elementary as an
          appropriate placement for Daniel; rather, he
          ordered the parents and the District to meet
          `for the purpose of preparing a transitional
          plan for Daniel to enter CSD [the District]
          [in] the fall semester of 1994.'

Id. at 5 n.3 (quoting App. at 11).

          The Drinkers further state that they "did not object to
Dr. Redfern's order, because, as they testified, they have never
objected to an appropriate in-district placement." Id. at 5.
Thus, the parents seem to suggest that, had they realized that
the hearing officer's order would require placement specifically
at Whitemarsh Elementary, they would have appealed the order to
the first appeals panel.

          For the purposes of this appeal, we need not determine
why the Drinkers did not appeal the placement decision of Dr.
Redfern. Their decision not to appeal, however, has contributed
to a procedurally complex series of IDEA disputes.

                                5
recommended delay before transition was too long and holding

that: (1) the parties were to develop a transition plan by April

1, 1994; (2) Daniel could remain at Gladwyne through April 22,

1994; and (3) the parties could move Daniel to Whitemarsh on

April 25, 1994, where Colonial would continue to implement his

transition plan.

          The parties did not develop Daniel's transition plan in

accordance with the appeals panel's schedule because the Drinkers

refused to cooperate with Colonial.0   On April 25, 1994, Colonial

stopped paying for Daniel's education at Gladwyne. Drinker v.

Colonial Sch. Dist., 888 F. Supp. 674, 676 (E.D. Pa. 1995).0

Nevertheless, Daniel remained at the school.   The Drinkers paid

$6,000 to Gladwyne for Daniel's education before exhausting their

resources.0

0
  At the district court hearing held on February 3, 1995, Daniel's
father testified that he and his wife refused to discuss Daniel's
transition from Gladwyne to Whitemarsh after the appeals panel's
decision because they believed that Daniel's placement was still
in dispute at that time. Drinker v. Colonial Sch. Dist., 888 F.
Supp. 674, 676 n.6 (E.D. Pa. 1995).
0
  Colonial claims that the Drinkers "have materially
misrepresented to the Court that the Colonial School District
discontinued its support for the Gladwyne placement in the Spring
of 1994," while in fact "the District bore the considerable
expense of this placement for the entire 1993-1994 school year."
Reply br. at 2. Because of our decision to affirm the holding of
the district court, this factual dispute is at issue in the case
only in regards to the amount to be reimbursed the Drinkers and
the Lower Merion School District for bearing the costs of
Daniel's education at Gladwyne after Colonial's refusal to pay.
However, we have not been asked, nor do we choose, to address the
factual issue since we remand the case for decision on that
matter.
0
  We state these facts as the district court found them, see
Drinker v. Colonial Sch. Dist., 888 F. Supp. at 676, since we
have not been asked to review that court's findings of fact in
this regard. On remand, the district court will need to

                                6
          In June 1994, the parties finally met to discuss

Daniel's program.   The parents again refused to discuss the

development of a transition plan and, on August 1, 1994,

requested another due process hearing.   Dr. Carole Welch

conducted that hearing in October 1994, at which Daniel's parents

sought to raise the issue of Daniel's placement.

          On October 30, 1994, Dr. Welch issued an opinion and

order that contained two holdings.   First, Dr. Welch found that

the issue of Daniel's placement was barred by principles of res

judicata because Daniel's parents had not sought judicial review

of the March 1994 appeals panel's decision.   Second, because the

parties could not develop a transition plan, Dr. Welch created a

plan intended to effect the complete transition of Daniel into

the Whitemarsh Elementary program by December 1994.   The Drinkers

appealed Dr. Welch's opinion and order to an administrative

appeals panel on November 21, 1994, and, two days later, filed

this action.   On December 28, 1994, the appeals panel affirmed

Dr. Welch's decision in full.0

          The Drinkers first appeared before the district court

on December 2, 1994, seeking a preliminary injunction providing

that Daniel could remain at Gladwyne at Colonial's expense.    At

determine the exact amount to be reimbursed the Drinkers for the
cost of Daniel's education at Gladwyne.
0
  Pennsylvania law requires an appeals panel to issue a decision
within 30 days. 22 Pa. Code § 14.64(o)(3). In this case, the
appeals panel issued its decision 37 days after the parents'
request for review. The district court concluded that the seven-
day delay appeared to have been harmless and regarded the delay
as inconsequential. Drinker v. Colonial Sch. Dist., 888 F. Supp.
at 767 n.9. The issue has not been raised for review in this
court.

                                 7
that time, however, the administrative process was incomplete:

Dr. Welch had issued her decision as an impartial hearing

officer, but the appeal before the three-judge panel still was

pending.   Thus, with the parties' consent, the district court

continued the hearing until after the second appeals panel had

issued its decision.   After the panel issued the decision, the

district court held a full hearing on February 3, 1995.

           On February 3, 1995, the parties agreed to consolidate

the hearing on the preliminary injunction with a trial on the

merits, pursuant to Fed. R. Civ. P. 65(a)(2).   Following the

resulting hearing, the district court issued a decision and order

dated February 13, 1995, affirming in their entirety the

substantive findings and conclusions of Dr. Welch and the second

appeals panel.   The court agreed with the hearing officer and

appeals panel that the issue of whether Colonial could change

Daniel's placement from Gladwyne to Whitemarsh had been litigated

before Dr. Redfern and thus could not be relitigated before Dr.

Welch and the second appeals panel.   Drinker v. Colonial Sch.

Dist., 888 F. Supp. at 680.   The court's reasoning in support of

this conclusion differed from that of Dr. Welch and the second

appeals panel, however.   Rather than relying on the Drinkers'

failure to appeal the decision of the first appeals panel to the

district court to conclude that litigation of the placement issue

was barred by res judicata, as had Dr. Welch and the second

appeals panel, the district court found that the Drinkers were

barred from litigating the issue further by their failure to




                                8
raise the issue beyond the hearing officer in the first

proceeding.     Id.

             Further, the district court concluded that the "stay

put" provision in section 1415(e)(3) of the IDEA required

Colonial to maintain and support Daniel's continued placement at

Gladwyne pending the outcome of the second due process hearing

and the subsequent appeals to the administrative appeals panel

and the district court.     Thus, the court ordered Colonial to pay

Daniel's expenses at Gladwyne through the date of its order.

Finally, the court denied the Drinkers' claim under 42 U.S.C.

§1983, finding that, standing alone, Colonial's violation of 20

U.S.C. § 1415(e)(3)'s stay put requirement did not rise to the

level of a section 1983 claim, nor had the Drinkers carried their

burden in proving that Colonial violated their constitutional

rights.     Drinker v. Colonial Sch. Dist., 888 F. Supp. at 681

n.14.     Colonial appeals only the district court's ruling

concerning section 1415(e)(3) of the IDEA.     The Drinkers have not

filed a cross-appeal.



                            II.   DISCUSSION

                  A.   Section 1415(e)(3) of the IDEA

             The IDEA, 20 U.S.C. §§ 1400-85, gives parents the right

to an impartial due process hearing on complaints regarding the

educational placement of their handicapped children, id.

§1415(b)(2), and to state or federal judicial review of final




                                   9
administrative decisions, id. § 1415(e)(2).0    During these

administrative and judicial proceedings, section 1415(e)(3) of

the Act, known as the "stay put" rule, W.B. v. Matula, 67 F.3d

484, 500 (3d Cir. 1995), applies:
          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 of such child, or, if
          applying for initial admission to a public
          school, shall, with the consent of the
          parents or guardian, be placed in the public
          school program until all such proceedings
          have been completed.



0
    Section 1415(e)(2) of the IDEA provides in relevant part:

             Any party aggrieved by the findings and
             decision made under subsection . . . shall
             have the right to bring a civil action with
             respect to the complaint presented pursuant
             to this section, which action may be brought
             in any State court of competent jurisdiction
             or in a district court of the United States
             without regard to the amount in controversy.
             In any action brought under this paragraph
             the court shall receive the records of the
             administrative proceedings, shall hear
             additional evidence at the request of a
             party, and, basing its decision on the
             preponderance of the evidence, shall grant
             such relief as the court determines is
             appropriate.

20 U.S.C. § 1415(e)(2).

          Pennsylvania has adopted a "two-tier" special education
administrative hearing system that consists of an evidentiary
hearing at the "local" level before a single impartial hearing
officer and then an independent review at the "state" level
before a panel of three impartial appellate officers. See 22 Pa.
Code § 14.64(m). This system conforms with the requirements of
sections 1415(b)(2) and (c) of the IDEA. See 20 U.S.C.
§§1415(b)(2), (c).


                                  10
20 U.S.C. § 1415(e)(3); see also 34 C.F.R. § 300.513(a).0

          The Supreme Court has described the language of section

1415(e)(3) as "unequivocal," in that it states plainly that "`the

child shall remain in the then current educational placement.'"

Honig v. Doe, 484 U.S. 305, 323, 108 S.Ct. 592, 604 (1988).     In

describing the section's purpose, the Court noted that it seems

clear that "Congress very much meant to strip schools of the

unilateral authority they had traditionally employed to exclude

disabled students, particularly emotionally disturbed students,

from school."   Id. at 323, 108 S.Ct. at 604; see also School

Comm. v. Department of Educ., 471 U.S. 359, 373, 105 S.Ct. 1996,

2004 (1985) ("We think at least one purpose of § 1415(e)(3) was

to prevent school officials from removing a child from the



0
 The educational agency and contesting parents may agree to a
change in placement under section 1415(e)(3). Federal
regulations under the statute thus provide as follows:

          During the pendency of any administrative or
          judicial proceeding regarding a complaint,
          unless the public agency and the parents of
          the child agree otherwise, the child involved
          in the complaint must remain in his or her
          present educational placement.

34 C.F.R. § 300.513. The due process requirements of the
Pennsylvania regulations implementing the IDEA track this federal
standard:

          No change in the identification, evaluation,
          educational placement or IEP of an
          exceptional student or an eligible young
          child may be made during the pendency of an
          administrative or judicial proceeding unless
          agreed to by the parties to the proceeding.

22 Pa. Code § 14.61(b).

                                11
regular public school classroom over the parents' objection

pending completion of the review proceedings.").

           Section 1415(e)(3) of the IDEA functions, in essence,

as an automatic preliminary injunction.   Zvi D. v. Ambach, 694

F.2d 904, 906 (2d Cir. 1982).   As the Court of Appeals for the

Second Circuit has stated, "[t]he statute substitutes an absolute

rule in favor of the status quo for the court's discretionary

consideration of the factors of irreparable harm and either a

likelihood of success on the merits or a fair ground for

litigation and a balance of hardships."   Id. (citations omitted);

see also 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).0 As we have stated:
          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. Once a court ascertains
          the student's current educational placement,
          the movants are entitled to an order without
          satisfaction of the usual prerequisites to
          injunctive relief.

Woods, 20 Indiv. Disabilities Educ. L. Rep. (LRP Publications) at
440.   The relevant inquiry under section 1415(e)(3) thus becomes

the identification of "the then current educational placement,"0

0
  As appellants correctly note, our decision in Woods is
unpublished, and thus is not regarded as binding authority. See
Internal Operating Procedure 5.8 (1994). However, because of the
case's factual similarity to that before us, we look to the
decision as a paradigm of the legal analysis we should here
follow.
0
  Neither the statute nor the legislative history provides
guidance for a reviewing court on how to identify "the then


                                12
of the handicapped student and, further, the identification of

who should pay for it.    See Woods, 20 Indiv. Disabilities Educ.

L. Rep. (LRP Publications) at 440; Zvi D., 694 F.2d at 906.     As

the Court of Appeals for the Second Circuit explained in Zvi D.:
          [I]mplicit in the maintenance of the status
          quo is the requirement that a school district
          continue to finance an educational placement
          made by the agency and consented to by the
          parent before the parent requested a due
          process hearing. To cut off public funds
          would amount to a unilateral change in
          placement, prohibited by the Act.

Id. at 906 (citing Monahan v. Nebraska, 491 F. Supp. 1074, 1089
(D. Neb. 1980), aff'd in part, vacated in part on other grounds,

645 F.2d 592, 597-98 (8th Cir. 1981)).

            In addressing Colonial's appeal, then, we must decide

if Gladwyne indeed qualified as Daniel's "then current

educational placement" during the pendency of the parents' second

round of hearing officer and appeals panel review and until the

time that the district court ruled.0   Our review of this legal

issue is plenary.    See Woods, 20 Indiv. Disabilities Educ. L.

Rep. (LRP Publications) at 440; Leonard v. McKenzie, 869 F.2d
1558, 1564 (D.C. Cir. 1989).



       B.   "During the pendency of any proceeding . . . ."

            Colonial's argument is several-fold.   First, Colonial

interprets Pennsylvania's two-tier system of administrative


current educational placement." Zvi D. v. Ambach, 694 F.2d at
906 n.5; see also Thomas v. Cincinnati Bd. of Educ., 918 F.2d
618, 625 (6th Cir. 1990).
0
  The Drinkers have not asserted that the "stay put" provision
extended beyond that date.


                                 13
review as providing for "finality" of decision at the "local"

level of impartial hearing officer review to the extent that such

a decision is not appealed to the state level.   See br. at 10-11

(citing 20 U.S.C. § 1415(c) and (e)(1); 34 C.F.R. § 300.509).

Decisions made at the state level, according to the school

district, are final to the extent that they are not appealed for

judicial review.   Id. at 11 (citing 20 U.S.C. § 1415(e)(1); 34

C.F.R. § 300.510(d)).

           Colonial next quotes from our decision in Woods, as

follows:
           [T]he purpose of the `stay put' is to
           preserve the status quo of the child's
           functioning placement and program until the
           underlying IDEA litigation is resolved,
           unless there is an effective waiver of the
           protection of the `stay put' (emphasis
           added).

Br. at 11 (citing Woods, 20 Indiv. Disabilities Educ. L. Rep.

(LRP Publications) at 440).   Colonial then seeks to apply this

statement from Woods to the situation of Daniel Drinker,

concluding that:
          In the present case, the `underlying IDEA
          litigation' concerning the central issue of
          whether Daniel should be placed at Whitemarsh
          Elementary or remain at Gladwyne Elementary
          was unquestionably `resolved' when the
          parents failed to challenge Dr. Redfern's
          ruling on that issue before the first appeals
          panel. On this point both the second appeals
          panel and the [district] court completely
          agree, and their independent conclusions are
          not in question before this Court on appeal.
          . . . [T]he decision to place Daniel at
          Whitemarsh Elementary School by the beginning
          of the 1994-1995 school year was resolved
          beyond the point of either collateral attack
          in further administrative proceedings or
          direct attack in judicial appeal.


                                14
Br. at 11-12.    Thus, Colonial essentially argues that because Dr.

Redfern decided that it could change Daniel's educational

placement from Gladwyne to Whitemarsh, which decision the

Drinkers did not appeal to the state administrative panel, Dr.

Redfern's decision became a final resolution of the "underlying

IDEA litigation," rendering section 1415(e)(3)'s stay put

requirement to keep Daniel at Gladwyne satisfied as of April 25,

1994.

          In making this argument, Colonial relies on the

elements of the district court's decision holding that the

Drinkers were barred from litigating the placement issue once

they failed to appeal Dr. Redfern's decision to the state

administrative panel.    Specifically, Colonial cites the district

court's conclusion that the issue of Daniel's placement, which

they claim to be the crux of the "underlying IDEA litigation,"

was "resolved beyond the point of either collateral attack in

further administrative proceedings or direct attack in judicial

appeal" because the issue was not appealed to the first state

appeals panel.    Br. at 12.   Therefore, Colonial argues that since

the "underlying IDEA litigation" was thus settled, section

1415(e)(3)'s mandate to maintain the "then current educational

placement" of Daniel at Gladwyne Elementary was settled at the

point of the first appeals panel's decision.

          We will assume without deciding that the district court

properly concluded that the underlying placement dispute was

resolved when the Drinkers did not appeal Dr. Redfern's decision.

Nevertheless, Colonial's conclusion that the court's application


                                  15
of the stay put provision of section 1415(e)(3) was inappropriate

does not follow.     Colonial makes the conceptual mistake of

separately cabining the issues of placement and transition,

concepts that cannot be so radically separated.0    While it is

true that the Drinkers acquiesced in Dr. Redfern's placement

decision, that decision included, as part and parcel of the plan,

a nearly-one-year transition program for Daniel.     In contrast,

the appeals decision of March 1994 aimed to place Daniel at

Whitemarsh by April 24, 1994, with barely a three-week transition

period.     Transition periods and timing of placement are integral

elements of any educational program, elements that were not

settled by any stretch of the imagination even were we to address

Colonial's claim that the bare fact of placement at Whitemarsh

had been decided as of March 17, 1994.     Thus, Dr. Redfern's

placement decision, though settling the issue of where Daniel

ultimately would be placed, had not settled the timing and

transition issues, since those elements were contested hotly

through the time of the February 13, 1995 decision of the

0
    Appellees stated the situation well in their brief:

             By defining the underlying litigation as only
             the placement issue, i.e. Gladwyne or
             Whitemarsh, Appellants ignore the important
             issues the parents consistently contested
             that were integrally related to the
             appropriate educational placement of Daniel.
             Those issues included the nature and length
             of transition (which Appellants resisted), an
             appropriate IEP (which appellants resisted),
             and payment for the appropriate program
             (Gladwyne).

Br. at 12 (footnote omitted).

                                  16
district court.   Consequently, Colonial's claim that section

1415(e)(3)'s mandate to maintain the Gladwyne placement could not

apply past the first appeals panel's decision is not an accurate

statement of the section's application.

          Colonial's reliance on Letter to Spindler, OSEP Policy

Letter, Apr. 21, 1992, reprinted in 18 Indiv. Disabilities Educ.

L. Rep. (LRP Publications) 1038, 1039 (1992), does not change our

conclusion.   Colonial contends that this letter from the Office

of Special Education Programs of the U.S. Department of Education

to an educator in Montana plainly holds that "the pendent

placement in which a student must `stay put' is the one upheld by

a final, unappealed order, regardless of whether continued

program disputes and due process hearings concerning that

placement are likely."   Br. at 13.   However, the facts at issue

in Letter to Spindler concerned an unappealed district court

order regarding educational placement.    The letter simply states

that, for stay put purposes, an unappealed district court order

is a final order.   In contrast, here Colonial's claimed "final"

order was that of an impartial hearing officer, unexamined by

either state administrative or judicial review, and the program

disputes at issue were not the mechanics of an IEP, as in Letter

to Spindler, but the all-important issues of timing and

transition to a new educational placement -- the issues at the

core of section 1415(e)(3)'s concerns.    Thus, we find Letter to

Spindler unpersuasive in regards to our holding that the

"underlying IDEA litigation" concerning Daniel Drinker's

education was not resolved at the time of the first appeals


                                17
panel's decision.   Woods, 20 Indiv. Disabilities Educ. L. Rep.

(LRP Publications) at 440.    Because the litigation was not

resolved, section 1415(e)(3)'s requirement that "during the

pendency of any proceedings . . . the child shall remain in the

then current educational placement" applied to the case of Daniel

Drinker beyond the first appeals panel decision.



    C.   Daniel Drinker's "then current educational placement"

          As the Drinkers note, there is no question that

Gladwyne was the current placement of Daniel Drinker at the time

Colonial issued the NORA to them in July 1993.    Br. at 11.    The

IEP team, consistent with the requirements of the IDEA, 42 U.S.C.

§ 1414(a)(5), and Pennsylvania Regulations, 22 Pa. Code

§§14.42(b), (c), and 14.32, had determined the appropriate

placement and location of services for Daniel to be Gladwyne

Elementary in October 1992.    In the fall of 1993, there was no

other valid IEP in place.    Thus, there was no other current

educational placement at that time.   As the Court of Appeals for

the 6th Circuit has stated:
          Because the term connotes preservation of the
          status quo, it refers to the operative
          placement actually functioning at the time
          the dispute first arises. If an IEP has been
          implemented, then that program's placement
          will be the one subject to the stayput
          provision. And where . . . the dispute
          arises before any IEP has been implemented,
          the `current educational placement' will be
          the operative placement under which the child
          is actually receiving instruction at the time
          the dispute arises.




                                 18
Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir.

1990).

          The standard in our cases has been the same.   As we

noted in Woods, "the dispositive factor in deciding a child's

`current educational placement' should be the Individualized

Education Program ("IEP") . . . actually functioning when the

`stay put' is invoked."   Id., 20 Indiv. Disabilities Educ. L.

Rep. (LRP Publications) at 440.

          As the operative placement actually functioning at the

time the dispute between the Drinkers and Colonial arose (the IEP

actually functioning when the stay put provision of the IDEA was

invoked) was Daniel's placement at Gladwyne Elementary, the

district court was correct in its decision that Colonial must

bear the burden of paying for the costs of Daniel's education at

Gladwyne through the date of the district court's final order.

See School Comm. v. Department of Educ., 471 U.S. at 372-74, 105

S.Ct. at 2004-05.



                            D.    Waiver

          Colonial's second line of attack on the district

court's holding is that the Gladwyne Elementary School could not

have remained Daniel's "then current educational placement"

because of the effective waiver of the protection of the "stay

put" provision by Daniel's parents. Colonial claims that:
          Dr. Welch, the second appeals panel, and the
          District Court below appear to be united in
          their conclusion that the failure of the
          parents to appeal Dr. Redfern's order to the
          first appeals panel effectively and


                                  19
          conclusively resolved the underlying
          placement dispute in favor of Colonial's
          Whitemarsh Elementary proposal. The District
          Court also concluded, in an analysis that
          specifically addressed its ability to
          consider the placement issue as if on direct
          appeal from the first panel's decision, that
          the parents had effectively waived the right
          to litigate further the appropriateness of
          the placement at Whitemarsh by failing to
          present the issue to the first panel.

Br. at 15.

             However, even were we to accept the argument that the

Drinkers were estopped from raising the placement issue for

either administrative or judicial review once they failed to

bring the matter to the attention of the first appeals panel,

section 1415(e)(3)'s stay put mandate would apply to Daniel's

situation because the transition elements of his program still

were being contested hotly by the parties through the time of the

district court's review. As the Drinkers note in their brief,
          [a]dministrative decisions . . . that may be
          interpreted as inconsistent with the lower
          court's finding that Gladwyne was Daniel
          Drinker's current placement `cannot
          metamorphize [sic] the procedural record or
          alter facts' that the Drinkers were
          continuing to resist Colonial's vigorous
          efforts to move Daniel as quickly as possible
          from Gladwyne and impose the costs of
          continued placement at Gladwyne on the
          Drinkers.

Br. at 13 (citing Woods, 20 Indiv. Disabilities Educ. L. Rep.
(LRP Publications) at 440).

             Moreover, to the extent that appellants argue that the

Drinkers "effectively" waived the protection of the stay put

provision, the Drinkers are correct in noting that nothing in

Woods or any other case that we have found interprets the stay


                                  20
put provision as suggesting that parents can lose their stay put

protection except by affirmative agreement to give it up.     See

Br. at 13 (citing Woods, 20 Indiv. Disabilities Educ. L. Rep.

(LRP Publications) at 440.)     In any event, even assuming that in

a proper case the stay put provision can be waived, we find

nothing in the record here that leads us to believe that this is

such a case.   Consequently, inasmuch as there was no explicit

agreement by the Drinkers and Colonial that Gladwyne would not be

Daniel's "current educational placement" for purposes of the stay

put provision, the Drinkers did not waive that protection.     See

20 U.S.C. § 1415(e)(3); 34 C.F.R. § 300.513; 22 Pa. Code

§14.61(b).



                         III.    CONCLUSION

          For all the reasons detailed above, we will affirm the

district court's order of February 13, 1995, granting the

Drinkers' motion for a preliminary injunction in part and

entering judgment in favor of the Drinkers on Count II of their

complaint.   Accordingly, we will remand the case to the district

court for the entry of orders requiring Colonial to reimburse all

costs billed to the Drinkers for Daniel's education at Gladwyne

and to pay all further costs owed to the Lower Merion school

district for Daniel's education through February 13, 1995, the

date of the district court's final order.0    In accordance with

0
 The Court of Appeals for the District of Columbia Circuit held
in Andersen v. District of Columbia, 877 F.2d 1018, 1023 (D.C.
Cir. 1989), that maintenance of a child's "then current
educational placement" under section 1415(e)(3) is required only

                                  21
the district court's order of September 20, 1995, the Drinkers

are entitled to renew their motion for attorneys' fees to that

court within 14 days of the issuance of our judgment.   Thus, we

need not address that issue here.




through the level of district court review. That is, maintenance
of the placement is not required during the process of appeal to
the courts of appeal or the Supreme Court. Id. To our
knowledge, that court is the only court of appeals to have
addressed this issue. Without deciding the matter, we affirm the
district court's decision to require Colonial to "bear the burden
of paying for the costs of Daniel's education at Gladwyne through
[the district court's] review." Drinker v. Colonial Sch. Dist.,
888 F. Supp. at 681.


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