                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2000

Michael C. v Radnor Twp. Sch. Dist
Precedential or Non-Precedential:

Docket 99-1124




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Filed January 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1124

MICHAEL C., A MINOR BY HIS PARENT
AND NEXT FRIEND, STEPHEN C.;
STEPHEN C., INDIVIDUALLY, AND ON
HIS OWN BEHALF

v.

THE RADNOR TOWNSHIP SCHOOL DISTRICT;
PENNSYLVANIA DEPARTMENT OF EDUCATION

Michael C.; Stephen C.,
       Appellants

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 98-cv-04690)
District Judge: Honorable Charles R. Weiner

Argued: November 2, 1999

Before: NYGAARD, MCKEE and ROSENN, Circuit Judges.

(Filed: January 14, 2000)

       Dennis C. McAndrews, Esq. (Argued)
       Suite 130
       150 Strafford Avenue
       Wayne, PA 19087

        Counsel for Appellants
        Michael C. and Stephen C.
       Rosemary E. Mullaly, Esq. (Argued)
       Sweet, Stevens, Tucker & Katz, LLP
       116 East Court Street
       P.O. Box 150
       Doylestown, PA 18901

        Counsel for Appellee
        Radnor Township School District

       Calvin R. Koons, Esq. (Argued)
       D. Michael Fisher, Esq.
       John G. Knorr, III, Esq.
       Office of Attorney General
       Appellate Litigation Section
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

        Counsel for Appellee
        Pennsylvania Department
        of Education

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal has its genesis in social legislation enacted
by Congress designed to encourage states to provide
meaningful education to individuals with disabilities. The
specific question before us is whether the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C.S 1400 et
seq., requires a Pennsylvania school district to provide a
student with disabilities who relocates from another state
with an interim educational program identical to the
program the student received in his or her prior state of
residence. Michael C., a student with disabilities, attended
a private school in Washington, D.C. under an
Individualized Education Plan ("IEP") formulated by
Washington educational authorities. Michael and his father
moved from Washington to Radnor Township, Pennsylvania
in the summer of 1997, and requested special educational
treatment from the Radnor Township School District
("Radnor"). Radnor responded with specific educational
proposals but Michael's father rejected them, and

                                  2
unilaterally placed Michael in a private school. Michael
remained in this school for 41 days, after which his family
again moved, this time to New Jersey.

Michael's father later initiated administrative proceedings
seeking reimbursement for tuition costs incurred while
Michael attended the private school in Pennsylvania. After
unsuccessfully pursuing his administrative remedies,
Michael's father filed this action in the United States
District Court for the Eastern District of Pennsylvania
against Radnor and the Pennsylvania Department of
Education ("PDE"), seeking tuition reimbursement and
claiming violations of the IDEA, 20 U.S.C. S 1415(j), the
Rehabilitation Act, 29 U.S.C. S 794, and the Civil Rights Act
of 1871, 42 U.S.C. S 1983. He also claimed that Michael's
and his family's right to travel interstate under the
Fourteenth Amendment to the United States Constitution
had been violated. On cross-motions for summary
judgment, the district court entered summary judgment in
favor of Radnor and PDE as to all claims. The court also
granted PDE's separate motion for dismissal of theS 1983
claim as to it based on Eleventh Amendment immunity.
This timely appeal followed.1 We will affirm.

I.

The facts of this case are undisputed. Michael, 17 years
old at the time events relevant to this case occurred, is
learning disabled and suffers from severe hemophilia. Prior
to August 1997, Michael and his father lived in Washington
D.C. Pursuant to the IDEA, Washington public educational
authorities had developed an IEP2 for Michael.3 This IEP
_________________________________________________________________

1. The district court had subject matter jurisdiction over this case
pursuant to 20 U.S.C. S 1415(i) (formerly 20 U.S.C. S 1415(e)) and 28
U.S.C. SS 1331 and 1343. We have appellate jurisdiction pursuant to 28
U.S.C. S 1291.

2. The IEP is the "centerpiece" of the IDEA. See Honig v. Doe, 484 U.S.
305, 311 (1988). " `The IEP consists of a detailed written statement
arrived at by a multi-disciplinary team summarizing the child's abilities,
outlining the goals for the child's education and specifying the services
the child will receive.' " Oberti v. Board of Educ. of Borough of
Clementon
Sch. Dist., 995 F.2d 1204, 1213 n.16 (3d Cir. 1993) (quoting Polk v.

                               3
recommended placement at a "public/private separate
school." (A.185a). Accordingly, Michael attended a small
private school for learning disabled students called the LAB
School. The LAB School served only students with
disabilities, and therefore its students were segregated from
their non-disabled peers. Michael attended the LAB School
for three years.

When Michael and his father moved to Pennsylvania in
1997, the father contacted Radnor educational authorities
to obtain appropriate placement for Michael. Radnor
convened an "IEP meeting" to develop an interim program
for Michael for the 1997-98 school year. At this time,
Radnor had not yet completed its own evaluation of
Michael's educational needs. By letter dated August 26,
1997, Radnor offered Michael two interim programming
options pending completion of its own evaluation of
Michael's needs. Both of these options placed Michael at
Radnor High School ("Radnor High"), a large public high
school with a total enrollment of approximately 800
students, where Radnor believed it could effectively
implement the substance of Michael's Washington IEP. The
first option, which Radnor characterizes as the"learning
support" or "LS" option, involved enrolling Michael in
mainstream English, science, social studies and elective
classes, and in special education mathematics and written
expression classes. This option also involved provision of
support for homework and test preparation, and the
development of study skills through a special education
resource program. The second option, which Radnor
characterizes as the "emotional support" or"ES" option,
_________________________________________________________________

Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d
Cir.1988), cert. denied, 488 U.S. 1030 (1989)). It "must include, among
other things, a statement of the child's current level of educational
performance, annual goals for the child, specific educational services to
be provided, and the extent to which the child will participate in regular
educational programs." Id. (citing 34 C.F.R. 300.346, subsequently
recodified at 34 C.F.R. S 300.347 by 64 Fed. Reg. 12405, 12442 (Mar.
12, 1999)).

3. Under the IDEA, Washington, D.C. is considered a "State." 20 U.S.C.
S 1401(27).

                               4
involved enrolling Michael in an "Emotional Support
Program" for English, science, social studies, health and
physical education classes, in "learning support" for
mathematics, and in mainstream elective courses.

Michael's father rejected these options, and unilaterally
decided to place Michael at the Hill Top School, a small
private school for children with disabilities. In the fall of
1997, before Radnor had completed Michael's evaluation,
Michael and his father again relocated, this time to New
Jersey, for reasons related to the father's job. Michael had
attended Hill Top for 41 days, during which time his father
incurred tuition expenses in the amount of $4299.31.
Because Michael left Pennsylvania before Radnor officials
had completed their own evaluation of Michael's
educational needs, Radnor never developed its own IEP for
Michael.

In January 1998, after moving to New Jersey, Michael's
father initiated a due process hearing in Pennsylvania as
provided for by the IDEA, 20 U.S.C. S 1415(f). The purpose
of this hearing was to determine whether the IDEA required
Radnor to reimburse the father for the cost of Michael's Hill
Top tuition. Both the local hearing officer and later the
Pennsylvania Special Education Appeals Panel rejected the
father's request. Both relied on a policy memorandum of
the United States Department of Education's Office of
Special Education Programs ("OSEP") stating that when a
disabled student moves from one state to another, the new
state of residence is not required to adopt and implement
the most recent IEP developed for the student by the
previous state of residence.

The plaintiffs then instituted the present action against
Radnor and PDE. PDE moved to dismiss their S 1983 claim
against it based on the Eleventh Amendment. In addition,
the parties agreed that all claims could be decided on the
administrative record without further evidence, and cross-
moved for summary judgment. On February 5, 1999, the
district court granted PDE's motion to dismiss the S 1983
claim as to it, and also granted the defendants' motion for
summary judgment as to all claims and denied the
plaintiffs' cross-motion, relying heavily on the OSEP policy
memorandum.

                               5
II.

Although plaintiffs, Michael C. and his father, claimed
numerous statutory violations and one constitutional
violation in the district court, on appeal they seek relief on
only two of these grounds. First, they contend that the
IDEA's "pendency" or "stay-put" provision, 20 U.S.C.
S 1415(j), required Radnor to implement Michael's
Washington IEP. Second, plaintiffs argue that Radnor's
refusal to implement Michael's Washington IEP violated his
and his family's constitutional right to interstate travel. We
exercise plenary review over the district court's order
granting summary judgment in favor of the defendants. See
W.B. v. Matula, 67 F.3d 484, 493 (3d Cir. 1995). The
material facts being undisputed, we therefore address
plaintiffs' arguments that they, and not the defendants, are
entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52
(1986).

       A. Whether the IDEA Required Radnor to Implement
       Michael's Washington IEP

In enacting the IDEA, Congress made known its strong
preference for integrating students with disabilities into
regular classrooms, and against segregating such students
from their non-disabled peers unless absolutely necessary
to provide them with an educational benefit. See 20 U.S.C.
S 1412(a)(5)(A); Honig v. Doe, 484 U.S. 305, 311 (1988);
Oberti v. Board of Educ. of Borough of Clementon Sch. Dist.,
995 F.2d 1204, 1213-14 (3d Cir. 1993). Nevertheless, cases
presenting the reverse situation occasionally arise, where
the complaint is the school district's failure to segregate a
child from his or her non-disabled peers by placing that
child in a learning environment serving only disabled
students. This is such a case.

The plaintiffs contend that the defendants' refusal to
adopt Michael's Washington IEP and to implement that IEP
by placing him in the segregated Hill Top school, as
opposed to a more integrated learning program at Radnor
High, violated the IDEA's "pendency" or "stay-put"

                               6
provision. This provision, found at 20 U.S.C. S 1415(j),
states in pertinent part:

       . . . [D]uring 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.4

Plaintiffs argue that when Michael moved to Radnor
Township, the LAB School in Washington was Michael's
"then-current educational placement," and Radnor
educational authorities' process of evaluating his
educational needs constituted pending proceedings.
Accordingly, plaintiffs contend that Radnor was obligated
during this time to implement Michael's Washington IEP,
and that this required placing him at Hill Top, a private
school, which they assert provided the educational program
most similar to the one Michael received at the LAB School.

The district court agreed with the local hearing officer,
the state appeals board, and the defendants that the IDEA
is silent on how to apply the pendency provision when a
student transfers from another state. It therefore accorded
deference to the federal OSEP Policy Memorandum 96-5.
That memorandum states in pertinent part:

       [E]ntitlement to a [free appropriate public education,
       or] FAPE, by its terms, encompasses an appropriate
       educational program that is individually-designed for
       each student in accordance with the requirements of
       Part B [of IDEA] and the educational standards of the
       State in which the student's parents reside. In
_________________________________________________________________

4. In 1997, Congress amended the IDEA. These amendments, which for
the most part became effective on June 4, 1997, substantially
reorganized the statute. They also slightly modified the stay-put
provision, which previously was found at 20 U.S.C.S 1415(e)(3)(A).
However, the 1997 amendments do not appear to have altered this
provision in any way relevant to this appeal.

                               7
       addition, under 34 C.F.R. S 300.600, each State must
       exercise a general supervision over all programs in the
       State that provide educational services to disabled
       students, and must ensure that all such programs
       meet State education standards and Part B
       requirements.

        When a student moves from a school district in State
       A to a school district in State B, the State B school
       district first must ascertain whether it will adopt the
       most recent evaluation and IEP developed for the
       student by the State A school district. Since the State
       A school district's evaluation and IEP were based in
       part on the educational standards and eligibility
       requirements of State A, the student's evaluation and
       IEP developed by the State A school district might not
       necessarily be consistent with the educational
       standards of State B. Therefore, the State B school
       district must determine, as an initial matter, whether
       it believes that the student has a disability and
       whether the most recent evaluation of the student
       conducted by the school district in State A and the
       State A school district's IEP meet the requirements of
       Part B and well as the educational standards of State
       B.

OSEP Policy Memorandum 96-5, reprinted in 24 Indiv.
Disabil. Educ. L. Rptr. 320 (U.S. Dep't Educ. Dec. 6, 1995).
The district court therefore held that the pendency
provision did not require implementation of Michael's
Washington IEP.

On appeal, plaintiffs make two arguments. First, they
contend that the OSEP Policy Memorandum is not entitled
to deference because the plain language of the pendency
provision and federal judicial and administrative decisions
interpreting this provision dictate a contrary result. Second,
they argue that regardless of the interpretation given the
IDEA's pendency provision, Pennsylvania regulations,
which the IDEA incorporates into its scheme, contain a
broader pendency requirement, and the Pennsylvania
pendency regulation dictates a contrary result. Radnor and
PDE dispute these arguments, and in addition contend that
because no "proceedings" under section 1415 were pending

                               8
while Michael resided in Radnor Township, the stay-put
provision is inapplicable. We address these arguments in
order.

1. Application of the IDEA's Stay-Put Provision

In interpreting a congressional enactment, a court must
first " `determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular
dispute in the case.' " Deane v. Pocono Med. Ctr., 142 F.3d
138, 146 (3d Cir. 1998) (en banc) (quoting Robinson v. Shell
Oil Co., 519 U.S. 337, 340 (1997)). "The plainness or
ambiguity of statutory language is determined by reference
to the language itself, the specific context in which that
language is used, and the broader context of the statute as
a whole." Robinson, 519 U.S. at 340. The IDEA is silent on
how its pendency provision is to be applied to students who
transfer interstate versus students who transfer intrastate,
and the plain language of the pendency provision is at best
ambiguous with respect to this issue. On its face, it is not
clear that Congress intended the requirement that a
student remain in his or her "then-current educational
placement" to apply to students who relocate from one state
to another. For example, a student's prior placement no
longer seems "current" after he or she withdraws from that
placement and moves away. Moreover, it is impossible for
the student's new school district in Pennsylvania to keep
the student in his or her previous school as required by the
"stay put" provision where that school is in another state.
Therefore, we must look beyond the isolated text of section
1415(j) for guidance on how to apply this provision in this
case. See, e.g., United States v. Balascsak, 873 F.2d 673,
679 (3d Cir. 1989).

OSEP is the agency charged with principal responsibility
for administering the IDEA. 20 U.S.C. S 1402(a). The
portion of OSEP Policy Memorandum 96-5 relevant to this
case is properly characterized as an interpretive rule
because it imposes no substantive obligations, but rather
clarifies that the IDEA's pendency provision does not apply
to situations where a student moves from one state to

                               9
another. See Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir.
1989) (en banc).5

The district court deferred to OSEP Policy Memorandum
96-5, citing Chevron, U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). This court has
held that the level of deference to be accorded such
interpretive rules depends upon their persuasiveness.
"Admittedly, [they] do not rise to the level of a regulation
and do not have the effect of law. A court is not required to
give effect to an administrative interpretation. . .. Instead,
the level of deference given to an interpretive bulletin is
governed by the bulletin's persuasiveness." Brooks v. Village
of Ridgefield Park, 185 F.3d 130, 135 (3d Cir. 1999)
(citations omitted). See Elizabeth Blackwell Health Center
for Women v. Knoll, 61 F.3d 170, 182 (3d Cir. 1995)
(deferring to HHS directive interpreting Hyde Amendment
restricting use of Medicaid funds to fund abortions, and
holding that HHS interpretation preempted Pennsylvania
law), cert. denied, 516 U.S. 1093 (1996); see also Honig,
484 U.S. at 325 n.8 (according deference to OSEP policy
letter setting forth agency's interpretation of phrase "change
in placement" in IDEA's predecessor statute).

The conclusion expressed in OSEP Policy Memorandum
96-5 that one state need not automatically accept and
implement an IEP developed by another state does not
appear to conflict with any previous or subsequent position
taken by that agency. As we now discuss in greater detail,
because this aspect of the policy memorandum is well-
reasoned and persuasive in that it comports with the
_________________________________________________________________

5. As it did before the district court, Radnor takes issue with portions
of
the OSEP Policy Memorandum suggesting that where a disabled student
with a functioning IEP in State A moves to State B, State B authorities
should follow a procedure for interim assessment and program
implementation prescribed therein. Although Radnor asserts that it
satisfied OSEP's suggested procedures in this case, it contends that
OSEP lacks authority under IDEA to impose these affirmative
requirements on school districts. It is unnecessary for us to reach this
issue, however (see Op. at 6 n.7; Radnor Br. at 18-19), and we express
no opinion on these portions of OSEP's memorandum. Rather, our
analysis is restricted to the memorandum's conclusion that one state
need not adopt and implement an IEP developed by another state.

                               10
IDEA's statutory and regulatory scheme and with precedent
interpreting that scheme, we are persuaded that the district
court did not err in its thoughtful analysis and conclusion
to defer to the memorandum.6

There are strong reasons for that deference and the result
reached by the district court. The IDEA recognizes that
education is traditionally a state function. Accordingly, it
leaves the responsibility of providing a free appropriate
public education, or "FAPE," to students with disabilities to
state and local educational authorities. See 20 U.S.C.
S 1400(c)(6) (1998); 20 U.S.C. S 1400(b)(8) (1996); 34 C.F.R.
SS 300.13, 300.600 (1999). Provision of a FAPE requires
that special education and related services must"meet the
standards of the State educational agency," and must
"include an appropriate preschool, elementary, or
secondary school education in the State involved." 20
U.S.C. S 1401(8) (1998); 20 U.S.C. S 1401(18) (1996). Under
current section 1412, States are eligible for federal financial
assistance only when the state demonstrates that it"has in
effect policies and procedures to ensure that it meets" the
conditions imposed, including that it makes available a
FAPE to children with disabilities residing in that state. 20
U.S.C. S 1412(a) (1998). A local educational authority is
_________________________________________________________________

6. Citing to 20 U.S.C. S 1407(f), plaintiffs argue that the 1997 IDEA
amendments make clear that OSEP's policy statements are not entitled
to the force of law. Presumably, plaintiffs intended to cite to S 1406(f),
which states that where the Secretary responds to an inquiry regarding
a policy, question, or interpretation under Part B of the IDEA, that
response "shall include an explanation that the written response--

(1) is provided as informal guidance and is not legally binding; and

(2) represents an interpretation by the Department of Education of the
applicable statutory or regulatory requirements in the context of the
specific facts presented."

Assuming that Policy Memorandum 96-5 is the type of response
referred to by this provision, section 1406(f) merely imposes a
requirement that the DOE response put readers on notice that it is not
legally binding. This requirement, which was not effective when OSEP
published Policy Memorandum 96-5, does not prevent us from
considering DOE policy statements to be persuasive and therefore
worthy of deference.

                               11
eligible to receive these federal funds only if it "has in effect
policies, procedures, and programs that are consistent with
the State policies and procedures established under section
1412." 20 U.S.C. S 1413 (1998).

Because Congress left primary responsibility for providing
a FAPE and for implementing the IDEA to the states, we
believe it unlikely that Congress intended the stay-put
provision, which dates back to 1975 and the IDEA's
predecessor statute, to impose a requirement on states that
they must implement an IEP established in another state
without considering how consistent that IEP is with the
policies and mandates of the student's new residential
state.

Precedent interpreting the IDEA's pendency requirement
supports this interpretation. As the parties observe, the
stay-put provision was intended to serve as a type of
"automatic preliminary injunction" preventing local
educational authorities from unilaterally changing a
student's existing educational program. See Drinker v.
Colonial School Dist., 78 F.3d 859, 864 (3d Cir. 1996).
Where the student's existing IEP calls for public school
placement with educational supports to compensate for the
child's disability, the stay-put provision may require that
local educational authorities not unilaterally attempt to alter
the IEP by placing the child in segregated, non-regular
education classes. See, e.g., Honig, 484 U.S. at 323-28;
Oberti, 995 F.2d at 1220-24. Conversely, where the
student's existing IEP requires placement in a private
school, the stay-put provision may require that local
authorities not unilaterally attempt to alter the IEP by
placing the student in a public, regular education classes.
See Drinker, 78 F.3d at 867; Jarczynski v. St. Mary's
County Pub. Sch., 29 Indiv. Disabil. Educ. L. Rep. 49 (D.
Md. Oct. 13, 1998).

However, where a parent unilaterally removes a child
from an existing placement determined in accordance with
state procedures, and puts the child in a different
placement that was not assigned through proper state
procedures, the protections of the stay-put provision are
inoperative until the state or local educational authorities
and the parents agree on a new placement. See Susquenita

                               12
Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996).7 Only
once state authorities and parents have reached such
agreement does a "then-current educational placement"
come into existence. Id. In the instant case, it is Michael's
father who unilaterally removed Michael from the LAB
School when he moved the family to Radnor Township.
Neither Washington educational authorities nor
Pennsylvania authorities played any role in this decision.
The plaintiffs now claim that upon moving to Pennsylvania,
Radnor should have placed Michael at the Hill Top School
rather than at Radnor High. However, his father never
reached any agreement with Radnor or with other
Pennsylvania educational authorities that Michael should
be placed in a segregated, private school. Therefore,
Michael had no "then-current educational placement" in the
Commonwealth of Pennsylvania, and the stay-put provision
provides no relief for him.

We hold that the IDEA's overall scheme and the
precedent interpreting that scheme leads inexorably to the
conclusion that when a student moves from State A to
State B, any prior IEP in effect in State A need not be
treated by State B as continuing automatically in effect.
This interpretation of the inapplicability of the stay-put
provision may, as plaintiffs claim, lead to the initial result
that "disabled students like Michael with comprehensive
and long-standing IEP's . . . can be forced upon an
interstate move to somehow cope in regular education
without supports while the district and the parent resolve
any IEP dispute." (Appellant's Br. at 14 (emphasis in
original)). But if parents believe that private school
placement remains the only way to provide the student with
the educational benefit required by the IDEA, or otherwise
disagree with an IEP proposal, they can place the child in
_________________________________________________________________

7. We note that this scenario is distinguishable from the situation in
which a parent unilaterally removes a child previously determined to be
disabled from one school district and moves the child to another school
district in the same state. In the latter situation, the child's
educational
placement has already been determined in accordance with state
procedures and with the consent of the child's parents, and his or her
IEP bears the imprimatur of that state. See Inquiry of Rieser, OSEP
Policy Letter, July 17, 1986 (U.S. Dep't Educ. 1986).

                               13
a private school, initiate a due process hearing, and seek
reimbursement from educational authorities later. 8 See
Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15
(1993); School Comm. of Town of Burlington, Mass. v.
Department of Educ. of Commonwealth of Mass., 471 U.S.
359, 369-73 (1985). Of course, they act at their own
financial risk, and will recover only if they are correct that
local authorities have failed to provide the educational
program to which their child is entitled under the IDEA.
Burlington, 471 U.S. at 373-74. The plaintiffs' contention
that these parents would have to keep paying private school
tuition out of pocket for "years" is meritless, as federal and
state regulations impose strict timing requirements on the
completion of evaluations, the development and
implementation of IEPs, and review of challenges to a local
educational authority's proposal or refusal to initiate or
change the identification, evaluation, or educational
placement of a child or the provision of FAPE to a child. See
34 C.F.R. SS 300.504(a), 300.512; 22 Pa. CodeSS 14.25(m),
342.25(p) (timeline for completion of multidisciplinary
evaluations); 22 Pa. Code. S 14.32(i) (timeline for
preparation and implementation of IEPs); 22 Pa. Code
SS 14.63, 14.64(o) (timelines for requesting and holding
prehearing conference or due process hearing). We are
mindful that this interpretation may bind the hands of
parents who cannot afford to pay private school tuition out-
of-pocket and await future reimbursement. This same
result, however, can occur where parents of a student who
transfers intrastate disagree with the new school district's
placement of their child, and appears to be an unfortunate
reality of the system Congress created.

Accordingly, we hold that the interpretation adopted by
OSEP in Policy Memorandum 96-5 is a reasonable
_________________________________________________________________

8. Because Pennsylvania never established an IEP for Michael, it is not
certain that Radnor's interim educational plan for Michael was
inappropriate. The administrative hearing officer concluded that the
interim options proposed by Radnor would have closely approximated
the placement Michael received at the LAB School. The district court
found that this conclusion was supported by substantial evidence on the
record as a whole (Op. at 8 n.10), and plaintiffs have not appealed this
determination.

                               14
accommodation of the stay-put provision and the overriding
purposes and structure of the IDEA, and we are persuaded
that this interpretation deserves deference.9

       2. Pennsylvania's Regulatory Pendency Requirement

Nevertheless, even though the IDEA's stay-put provision
does not provide a basis for relief, "[f]ederal law
incorporates state standards, and a school district may
violate the IDEA if it fails to satisfy the more stringent state
_________________________________________________________________

9. We note that an additional reason for adopting OSEP's interpretation
of the stay-put provision, not asserted by the parties, may lie in the
limited congressional authority under which the provision was originally
enacted. The stay-put provision dates back to 1975, when it was enacted
as section 615(e)(3) of the IDEA's predecessor statute, the Education for
All Handicapped Children Act. See Pub. L. No. 94-142, 1975
U.S.C.C.A.N. (89 Stat.) 773, 789. Congressional authority for passage of
this statute derived from its spending power, U.S. Const. art. I, S 8, and
that act functioned by conditioning state and local educational
authorities' eligibility for federal funds upon their satisfaction of
certain
conditions favorable to education of disabled students. See Board of
Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176,
204 n.26 (1982). The Supreme Court has stated that"if Congress
intends to impose a condition on the grant of federal moneys, it must do
so unambiguously." Id. (quoting Pennhurst State School v. Halderman,
451 U.S. 1, 17 (1981)).

However, we note one wrinkle in this analysis. The 1997 amendments
to the IDEA altered the statute's "findings" provision to include language
invoking the Equal Protection Clause of the Fourteenth Amendment. See
18 U.S.C. S 1400(c)(6)-(10). This addition of the Fourteenth Amendment
as a constitutional basis for passage of the 1997 IDEA amendments may
undercut this spending power argument. Nevertheless, after the 1997
amendments, the stay-put provision remained substantially identical to
its previous text, was placed in "Part B" (subchapter II) of the amended
statute, which is entitled "Assistance for Education of All Children with
Disabilities," Pub L. No. 105-17, 1997 U.S.C.C.A.N. (111 Stat.) 37, 49,
and continued to appear in 20 U.S.C. S 1415, subpart (a) of which
explicitly states that the procedures established by that section are
conditions imposed upon "[a]ny State educational agency, State agency,
or local educational agency that receives assistance under this
subchapter."

Regardless, the parties have not raised or briefed this argument, and
we do not rely on it in deciding this appeal.

                               15
law requirements." Frith v. Galeton Area Sch. Dist., 900 F.
Supp. 706, 712 n.9 (M.D. Pa. 1995) (citing Doe v. Board of
Educ. of Tullahoma City Sch., 9 F.3d 455, 457 (6th Cir.
1993) (per curiam), cert. denied, 511 U.S. 1108 (1994)); see
also Board of Educ. of East Windsor Regional Sch. Dist. v.
Diamond, 808 F.2d 987, 992 (3d Cir. 1986). The plaintiffs
argue that a Pennsylvania regulation imposes a more
stringent pendency requirement than that imposed by IDEA
itself or by DOE regulations. The regulation in question
states:

       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 upon by the parties to the proceeding.

22 Pa. Code S 14.61(b).

The plaintiffs contend that this regulation's prohibition
on changes in a child's "identification, evaluation,
educational placement, or IEP" is broader than the federal
prohibition on changes in a child's "then-current
educational placement," and that this broader sweep
includes evaluations and IEP's from other states. One
federal district court has noted in dictum that the
Pennsylvania regulation is "much more prohibitive than its
federal counterpart" in that S 14.64(b) prohibits re-
evaluation during the pendency of proceedings, whereas the
federal stay-put provision only prohibits a change in
educational placement. See Delaware County Intermediate
Unit # 25 v. Martin & Melinda K., 831 F. Supp. 1206, 1223
n.25 (E.D. Pa. 1993). However, two other federal courts,
including this court, have noted that the requirements of
S 14.64(b) "track" the federal standard. See Drinker, 78 F.3d
at 864 n.11; Matthew K. v. Parkland Sch. Dist., No. Civ. A.
97-6636, 1998 WL 84009, at *5 n.6 (E.D. Pa. Feb. 26,
1998).

The district court rejected Michael's contention, holding
that "the Pennsylvania regulations are silent on accepting
out of state IEP's." (Op. at 7 n.8). We believe the district
court was right to do so for two reasons. First,
Pennsylvania regulations contain a provision expressly
requiring that:

                               16
       If an exceptional student moves from one school
       district in this Commonwealth to another, the new
       district shall implement the existing IEP to the extent
       possible or shall provide the services and programs
       specified in an interim IEP agreed to by the parents
       until a new IEP is developed and implemented in
       accordance with this [and other] sections[ ] . . . and
       until the completion of due process proceedings . . . .

22 Pa. Code. S 14.31(c). The existence of this specific
regulatory provision is significant because a parallel
provision dealing with students who move from another
state to a school district in Pennsylvania, and who had
previously been educated in accordance with an IEP
developed in that other state, is conspicuously absent from
these regulations. This absence evidences a lack of intent
on the part of Pennsylvania regulators to address Michael's
situation.

Second, the Pennsylvania appeals panel, the highest
administrative authority of the Commonwealth to opine in
this case, concluded that because the federal pendency
provision did not apply, once plaintiffs rejected Radnor's
interim IEP offer, "Michael was considered a regular
education student." (A.119a). Presumably, had this state
administrative panel construed Pennsylvania regulations to
mandate implementation of the Washington IEP, it would
have so held in its analysis.10

Accordingly, we hold that Pennsylvania regulations do
not require a Pennsylvania school district such as Radnor
to implement the IEP formulated in another state.

       3. "Proceedings"

In addition, even if we did interpret the IDEA's stay-put
provision to require a state to implement an IEP developed
by another state, this provision is not applicable in this
case because by its terms, it applies only to attempts to
_________________________________________________________________

10. In addition, the local hearing officer directly rejected plaintiffs'
argument, finding that Pennsylvania's regulations are merely
"clarifications of how to implement the federal IDEA requirements within
Pennsylvania." (A.127a-28a).

                                17
alter a student's current educational placement "during the
pendency of any proceedings conducted pursuant to this
section." 20 U.S.C. S 1415(j) (emphasis added). (See Radnor
Br. at 9; PDE Br. at 14). Radnor and PDE contend that the
earliest proceeding that can be conducted pursuant to
section 1415 is a due process hearing (conducted pursuant
to section 1415(f)), and that since Michael had already
moved to New Jersey when he requested a due process
hearing, no proceeding "conducted pursuant to" section
1415 was pending at the time he resided in Radnor
Township.

The district court rejected this argument, holding that
proceedings under section 1415 included "the opportunity
of the parent or guardian to inspect relevant records with
respect to the child's evaluation, and the notice
requirement the school district must satisfy when making
the initial placement decision," both of which had begun
while Michael lived in Radnor Township. (Op. at 4 n.4). The
district court characterized these as "proceedings set forth
in S 1415(b)," and noted that both "are part of the process
by which a school district changes a student's placement,
but by definition occur before the start of a due process
hearing."

In this respect, the district court was mistaken. The types
of proceedings dealt with in section 1415(b), which include
the conduct and development of evaluations, eligibility
determinations, IEPs, and educational placement, arise
under section 1414. Section 1415(b) merely sets forth
"procedures" to be observed during these "proceedings."
Therefore, no proceedings conducted pursuant to section
1415 were pending during the time Radnor offered to place
Michael in Radnor High and his father instead placed him
at Hill Top.11 See Verhoeven v. Brunswick Sch. Comm., ___
F.3d ___, No. 98-2348, 1999 WL 721698, at *5 (1st Cir.
Sept. 21, 1999) (stay-put provision applies during pendency
of "administrative and judicial proceedings challenging a
placement decision"); Kari H. v. Franklin Special Sch. Dist.,
_________________________________________________________________

11. We do not address whether the mediation procedures codified at
section 1415(e) by the 1997 IDEA amendments qualify as "proceedings
conducted pursuant to" section 1415 under the pendency requirement.

                               18
Nos. 96-5066 and 96-5178, 1997 WL 468326, at *6 (6th
Cir. Aug. 12 1997) (per curiam) (only three types of
proceedings arise under section 1415 -- due process
hearings, state administrative review, and civil judicial
review actions in state or federal court).12

Because we conclude that neither the stay-put provision
nor Pennsylvania regulations required Radnor to implement
Michael's Washington IEP, and that no proceedings were
pending in Pennsylvania while Michael resided there, we
therefore hold that plaintiffs' claim for reimbursement
under the IDEA must fail.13

B. Michael's Constitutional Right to Travel

The plaintiffs also contend that Radnor's failure to
implement Michael's Washington IEP violated their
Fourteenth Amendment right to travel interstate by denying
Michael benefits that would be afforded to a disabled
student who transferred intrastate, from one Pennsylvania
school district to another. We disagree.14
_________________________________________________________________

12. See also Drinker, 78 F.3d at 863-64 (noting that stay-put provision
applies during impartial due process hearing on parents' complaints
regarding educational placement of handicapped children, and during
state or federal judicial review of final administrative proceedings,
without comment about provision's application to earlier proceedings
involving local educational authorities); Mrs. C. v. Wheaton, 916 F.2d 69,
72 (2d Cir. 1990) (implying that pending "proceedings" means due
process proceedings under section 1415); Smith v. Roher, Civ. A. No. 89-
3258, 1991 WL 132545, at *1 (D.D.C. July 10, 1991) (stay-put provision
applies once process of administrative review of placement decision is
commenced and remains in effect through completion of civil action in
district court).

13. Although it does not appear that plaintiffs have appealed their claim
under the Rehabilitation Act, 29 U.S.C. S 794, we note that the district
court correctly concluded that this claim is derivative of their IDEA
claim
(Op. at 9), and therefore this claim too must fail.

14. In addition to granting summary judgment in favor of both
defendants on this claim, the district court also dismissed plaintiffs'
S 1983 claim as to PDE based on that defendant's Eleventh Amendment
immunity. (Op. at 2 n.3). The plaintiffs have not argued that this
decision was erroneous, and we therefore do not consider that ruling

                               19
The Court has described the constitutional right to travel
as embracing at least three components: (1) the right of a
citizen of one state to enter and leave another state; (2) the
right to be treated as a welcome visitor rather than an
unfriendly alien when temporarily present in the second
state; and (3) for those travelers who elect to become
permanent residents, the right to be treated like citizens of
that state. See Saenz v. Roe, 119 S. Ct. 1518, 1525 (1999).
The plaintiffs contend that the last of these components is
violated by Radnor's refusal to honor Michael's Washington
IEP. They base this assertion on the testimony of Radnor's
Director of Special Education that, had Michael been a
Pennsylvania resident who merely moved from another
Pennsylvania school district to Radnor, an IEP calling for
private placement would have been honored. (A.154a).

Adoption of the policy enunciated in OSEP Policy
Memorandum 96-5, however, does not cause Michael to be
treated differently from other Pennsylvania residents. Every
student in Pennsylvania identified as disabled is entitled to
an evaluation, an IEP, and if warranted, a special
placement, in accordance with Pennsylvania procedures.
Had Michael been a Pennsylvania resident transferring to
Radnor from another Pennsylvania district, where he had
already been identified as disabled and was being educated
in accordance with an IEP developed there, he would have
already submitted to these procedures. The District
Director of Special Education's testimony that Radnor
would have honored an IEP developed under such
circumstances flows logically from this view and in no way
affects plaintiffs' right to travel interstate.

Michael transferred from Washington, and had not yet
undergone an evaluation in accordance with Pennsylvania
procedures, as every other disabled student enrolled in
Pennsylvania had. Therefore, in requiring that a new IEP be
_________________________________________________________________

presented for our review. Accordingly, we discuss the plaintiffs' S 1983
claim as against Radnor only. Moreover, we do not address PDE's
additional argument that Michael has not adequately alleged that any
PDE official was involved in the decision not to honor his Washington,
D.C. IEP.

                               20
developed, Radnor's treatment of Michael was not
inconsistent with its treatment of Pennsylvania residents.
Indeed, only by submitting to these procedures could
Pennsylvania determine if Michael even had a right (under
the IDEA) to a private placement. Pennsylvania decided
that, at least on an interim basis, Michael had no such
right, and his educational needs could instead be met in a
structured public school placement. We need not pass on
the merits of that decision. See supra note 8.

Arguably, requiring a disabled student who has
undergone evaluation and IEP development in a different
state to submit to this process a second time upon moving
to a new state possibly may deter the student and his
family from moving to the new state. However, an otherwise
constitutional law that incidentally discourages migration is
not necessarily rendered suspect or invalid merely because
of such incidental effect. See Lawrence H. Tribe, American
Constitutional Law S 15-14, at 1381 (2d ed. 1988).

Michael has a right, established by the IDEA and defined
by state law, to a free, appropriate public education.
Radnor has done nothing to alter or deny Michael that
right. It has not imposed different standards on the type of
education Michael may receive versus the type of education
a disabled student who moves from one school district to
another within Pennsylvania may receive. Thus, Michael
cannot claim that Radnor's action in this case violated his
right to travel under the Equal Protection Clause of the
Fourteenth Amendment, and consequently, cannot claim a
violation of 42 U.S.C. S 1983.

III.

For the foregoing reasons, the order of the district court
granting summary judgment in favor of the defendants and
denying summary judgment for the plaintiffs will be
affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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