                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-1372
                                  No. 01-1374
                                  ___________

Jeffrey Hale, by and through his       *
parents, Jack Hale and Sherry Hale,    *
                                       *
      Plaintiff - Appellee/            * Appeals from the United States
      Cross Appellant,                 * District Court for the
                                       * Eastern District of Missouri.
      v.                               *
                                       *    [TO BE PUBLISHED]
Poplar Bluff R-I School District,      *
                                       *
      Defendant - Appellant/           *
      Cross Appellee.                  *
                                  ___________

                            Submitted: December 13, 2001

                                 Filed: February 11, 2002
                                  ___________

Before LOKEN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
                           ___________

PER CURIAM.

      Jeffrey Hale and his parents commenced this action under the Individuals with
Disabilities Education Act (IDEA) seeking judicial review of the decision of an
administrative hearing panel. See 20 U.S.C. § 1415(i). Based upon the
administrative record and the parties’ cross motions for summary judgment, the
district court1 ruled that the Poplar Bluff School District had violated IDEA’s “stay
put” provision, 20 U.S.C. § 1415(j), and ordered the District to provide Jeffrey
compensatory education services in the form of a summer program. However, the
court concluded that the District had provided Jeffrey the free appropriate public
education IDEA requires and therefore denied Jeffrey all other relief. See 20 U.S.C.
§ 1412(a)(1). The court also denied the Hales an award of attorneys’ fees because
they “prevailed on only a very small and technical part of their claim,” and because
of “the parents’ unreasonable failure to cooperate in arrangements for Jeffrey’s return
to school.” The Hales and the District cross appeal. We affirm.

       Jeffrey Hale suffers from mild cerebral palsy. He is a “child with a disability”
for purposes of the IDEA. See 20 U.S.C. § 1401(3)(A). In February 1999, Jeffrey
was in the sixth grade, receiving regular classroom and special education services
from the Poplar Bluff School District in accordance with his Individualized Education
Program. See 20 U.S.C. § 1412(a)(4). That month, he had surgery to implant a pump
in his abdomen that would deliver medication to his spine. With the District’s
approval, Jeffrey began receiving homebound instruction while he recovered from the
surgery. In August, this recovery period was extended into his seventh grade school
year because the pump had to be replaced.

       During the fall of 1999, relations between the Hales and the District
deteriorated to the point of total lack of cooperation. By early January, both parties
had requested due process hearings to determine the appropriateness of Jeffrey’s
education program. In mid-January, the District concluded that Jeffrey’s home was
no longer an appropriate learning environment and notified the Hales that Jeffrey
would now be provided the same services at school. The Hales refused to bring
Jeffrey to school, and he received no schooling until the district court issued a


      1
        The HONORABLE CATHERINE D. PERRY, United States District Judge
for the Eastern District of Missouri.

                                         -2-
preliminary injunction ten months later. Meanwhile, the due process hearing panel
concluded that the District had provided Jeffrey a free appropriate public education
and had not violated IDEA’s stay-put provision, but it ordered the District to provide
extended school year services and other relief while Jeffrey’s home schooling was
being phased out. Both sides sought judicial review of this decision.

      The district court first concluded that the District’s unilateral decision to
change the location of Jeffrey’s schooling from home to school violated the stay-put
provision. Under that provision, “during the pendency of any [due process]
proceedings . . . the child shall remain in the then-current educational placement of
such child” unless all parties agree otherwise. 20 U.S.C. § 1415(j). The stay-put
provision is literally and rigorously enforced, consistent with its purpose “to strip
schools of the unilateral authority they had traditionally employed to exclude
disabled students.” Honig v. Doe, 484 U.S. 305, 323 (1988) (emphasis in original).

       The statute does not define the term “then-current educational placement,” and
the District argues there was no change when it offered Jeffrey identical educational
services at a different location in January 2000. Considering this a fact-specific issue,
the district court reviewed the impact of the change on Jeffrey and concluded that
“[m]oving the location of his services, in this case, changed the educational
placement.” We agree. Though the parties cite prior cases which seem to disagree
on whether a mere change in location was a change in educational placement, the
conflict is more apparent than real. A transfer to a different school building for fiscal
or other reasons unrelated to the disabled child has generally not been deemed a
change in placement, whereas an expulsion from school or some other change in
location made on account of the disabled child or his behavior has usually been
deemed a change in educational placement that violates the stay-put provision if made
unilaterally. See Bd. of Educ. of Cmty. High Sch. Dist. No. 218 v. Ill. State Bd. of
Educ., 103 F.3d 545, 548-49 (7th Cir. 1996), and cases cited.



                                          -3-
       Surprisingly, we have found no appellate decision discussing the proper
standard for our review of this issue. The district court properly construed the statute,
correctly identifying the change-in-placement issue as fact intensive. The court then
made specific findings as to the impact of this change on Jeffrey’s education that are
not clearly erroneous. That should be the end of our review, but most circuit courts
seem to have reviewed the issue de novo. See, e.g., DeLeon v. Susquehanna Cmty.
Sch. Dist., 747 F.2d 149, 153-54 (3d Cir. 1984). Though we favor a more deferential
standard, the question is not significant in this case because we affirm the district
court’s stay-put ruling applying de novo review as well.

       The district court ordered the District to provide Jeffrey extended-school-year
services for one summer to remedy its violation of IDEA’s stay-put provision. The
District challenges this ruling on appeal, but we conclude it was well within the
court’s remedial discretion. The district court declined to grant any additional relief
for the stay-put violation, concluded that the District did not violate IDEA by failing
to provide Jeffrey a free appropriate public education, and rejected the Hales’ request
for an award of attorneys’ fees. The Hales cross-appeal these rulings. After careful
review of the record, we affirm these portions of the district court’s final order for the
reasons stated in its thorough opinion.

      The judgment of the district court is affirmed.

BYE, Circuit Judge, concurring in part and dissenting in part.

      I would reverse the district court's determination that the District violated
IDEA's stay-put provision by changing the location of Jeffrey's services in January
2000. The district court was required to give "due weight" to the state due process
hearing panel's conclusion that the District had not violated IDEA's stay-put
provision. Strawn v. Mo. State Bd. of Educ., 210 F.3d 954, 958 (8th Cir. 2000). As
the court noted, a change-in-placement issue is fact intensive. See Bd. of Educ. of

                                           -4-
Cmty. High Sch. Dist. No. 218 v. Ill. State Bd. of Educ., 103 F.3d 545, 549 (7th Cir.
1996). The due process hearing panel addressed this fact intensive issue and
determined the District did not violate stay-put by changing the location of Jeffrey's
services, given the information available to the District at the time the change in
location was made. I believe the district court failed to give "due weight" to the due
process hearing panel's decision. I would therefore reinstate the due process hearing
panel's decision, and reverse the district court's order awarding compensatory relief
stemming from the stay-put violation.

      I join the court in affirming the judgment of the district court in all other
respects.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -5-
