Pendency in charter school case

ELYSIAN CHARTER SCHOOL v. BAYONNE BD. OF ED., 09-3741 (3rd Cir. 6-10-2010): This is an interesting case out of New Jersey. Parents placed their child in a charter school outside their school district. Charter schools in New Jersey have administrative control over the special education process. The charter school is responsible for development and implementation of the IEP. The charter school recommended placement in a private school for the following school year and the parents agreed. The home school district objected and requested a hearing, maintaining that they could offer the child a FAPE. The parents asserted that pendency was the private school arguing alternatively that it was the current educational placement and that they and the school (i.e. the charter school) had agreed to the placement. The Third Circuit disagreed and held that the child’s pendency placement was the charter school, the last school the child had actually attended at the time the hearing request had been submitted. The Third Circuit also reasoned that to allow the parents and the charter school to agree on the child’s pendency placement would conflict with the home district’s right under New Jersey law to object to the private school placement recommendation.