Hatikvah International Academy Charter School v. East Brunswick Township Board of Education, No. 20-2083 (3d Cir. 2021)
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H.K., a fifth-grader who has been diagnosed with ADHD, oppositional tendencies, and developmental delays, lives within the East Brunswick school district. H.K. was previously enrolled at Hatikvah, a local educational agency. Both East Brunswick and Hatikvah are funded by taxpayers, East Brunswick’s annual budget is approximately 25 times greater than Hatikvah’s budget. Hatikvah proposed an individualized education program (IEP) under which H.K. would attend Bridge, a private school. H.K.’s parents instead unilaterally enrolled H.K. in a different private school, Laurel, then filed a due process petition under the Individuals with Disabilities Education Act (IDEA), seeking reimbursement for H.K.’s costs of attendance at Laurel. In administrative proceedings, Hatikvah agreed to implement a new IEP that kept H.K. at Laurel. East Brunswick did not participate in that proceeding but subsequently filed a separate petition with the New Jersey Department of Education, challenging H.K.’s placement at Laurel and arguing that East Brunswick could provide H.K. with a free, appropriate public education in a less restrictive environment. H.K.’s parents sought to compel East Brunswick to pay for H.K.’s costs of attending Laurel while that petition was litigated. Laurel is H.K.’s IDEA "pendent placement."
The Third Circuit ruled in favor of Hatikvah. Financial responsibility for all pendent placement costs rests entirely with the resident school district under the stay-put rule, 20 U.S.C. 1415(j)m noting that East Brunswick was challenging H.K.’s placement at Laurel.
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