78 F.3d 859 (3rd Cir. 1996), 95-1201, Drinker by Drinker v. Colonial School Dist.

Docket Nº:95-1201.
Citation:78 F.3d 859
Party Name: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. Greele
Case Date:March 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 859

78 F.3d 859 (3rd Cir. 1996)

Daniel DRINKER, by his parents and next friends Ned DRINKER

and Diane Drinker, and the Parents; Ned Drinker;

Diane Drinker, on their own behalf


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

No. 95-1201.

United States Court of Appeals, Third Circuit

March 12, 1996

Argued Jan. 29, 1996.

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

Andrew E. Faust (argued) Sweet, Stevens, Tucker & Katz, Doylestown, PA, for appellants.

Frank J. Laski (argued), Barbara E. Ransom, Public Interest Law Center of Philadelphia, Philadelphia, PA, for appellees.

Before: GREENBERG, NYGAARD, and LAY, [*] Circuit Judges.

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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. 1 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 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.


Daniel Drinker, 2 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 at Whitemarsh Elementary, a school within the Colonial District in September 1993. 3 The Drinkers protested the change and invoked their hearing rights under the IDEA. 4 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

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School, but 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. 5

On March 17, 1994, a three-judge administrative appeals panel issued an opinion agreeing with Colonial that Dr. Redfern's 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. 6 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). 7 Nevertheless, Daniel remained at the school. The Drinkers paid $6,000 to Gladwyne for Daniel's education before exhausting their resources. 8

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

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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. 9

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 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 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.


  1. 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 administrative decisions, id. § 1415(e)(2). 10 During these administrative

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    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...

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