Supreme Court To Address Meeting The Needs Of Special-Education Students

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Published on Saturday, 30 May 2009

Written by Tamar Lewin, NY Times

In a case with potential financial repercussions for school districts and families alike, the United States Supreme Court will soon decide when public schools must reimburse parents of special-education students for private-school tuition.

The case before the court involves a struggling Oregon high school student, identified in court documents only as T.A., whose parents enrolled him in a $5,200-a-month residential school after he became a heavy marijuana user and ran away from home.

Although his guidance counselor had noticed his difficulties and arranged an evaluation, the boy, who had angry outbursts and a history of behavioral problems, was found ineligible for special-education services at his high school in the Forest Grove School District.

"The district evaluation looked only at whether he had learning disabilities," said Mary Broadhurst, the lawyer representing the boy. "Even though staff notes mentioned suspected attention deficit hyperactivity disorder, they never evaluated him for it. So they refused to help."

Forest Grove, in its effort to reverse an appellate court decision ordering it to pay the boy's tuition, argues that precisely because the boy never received special-education services in public school, he is not eligible for tuition reimbursement under the federal disabilities law.

Disability rights advocates, backed by the federal Department of Education, argue that the law must allow such reimbursement, even for children who were never in special education, or risk forcing them to waste precious learning time languishing in classrooms where they are not getting an appropriate education.

School districts, though, contend that paying for private school for students whose parents enrolled them without district consent -- and without previous eligibility for special-education services -- diverts precious resources from the millions of special-education students served in the public schools.

In this case, Forest Grove School District v. T.A., No. 08-305, the district said the family agreed with the initial finding that their son was not eligible for special education, and removed him to private school without following all the procedures to get what ultimately was a diagnosis of ADHD and other problems for their son.

The Supreme Court, which heard arguments in the case in April, is taking its second pass at the issue. Two years ago, in New York City Board of Education v. Tom F., the court deadlocked after Justice Anthony M. Kennedy recused himself without an explanation. In the case, Tom Freston, the former chief executive of Viacom, sought tuition reimbursement after enrolling his learning-disabled son in private school without ever trying public school. The split left standing the appellate court ruling in favor of Mr. Freston. In the Forest Grove case, the Federal District Court ruled that the boy's family could not receive reimbursement, but the decision was overturned by the appellate court.

There are substantial differences between the two cases. In New York, a wealthy family sought tuition reimbursement without trying public school. In Forest Grove, though, T.A. was in public school from kindergarten until his junior year, receiving extensive in-home help from his mother and older sister to move from grade to grade but unable to get special-education services, despite his mother's pleas for "some method of teaching more appropriate for him."

But legally, both cases center on the interpretation of a 1997 amendment to the Individuals with Disabilities Education Act, which provides that disabled children are entitled to a "free appropriate public education."

That amendment says that parents of children with disabilities "who previously received special-education" services in a public setting may be entitled to reimbursement for private-school tuition if their public school did not make a free appropriate public education available in a timely manner.

While most of the nation's six million special-education students attend public school, the law allows parents to seek public financing for private school if the public schools cannot adequately serve their children, and almost 90,000 students are in private placements -- most of them with their public school's agreement.

But increasingly, thousands of families unilaterally enroll their learning-disabled, emotionally disabled or autistic children in private schools -- often with staggeringly high tuitions -- and then seek reimbursement.

T.A.'s family, backed by the federal Department of Education and many disability rights groups, say that reimbursement must be available, even if the school district has refused to provide special-education services.

Otherwise, they say, school districts would have an incentive not to identify a student as disabled or provide services.

"A lot of kiddos, like this one, develop emotional problems in high school, when the stress gets greater," Ms. Broadhurst, the lawyer, said. "In this case, the family asked for help at school and they were denied. If the Supreme Court says that means they can't get reimbursement, there's a perverse incentive from schools to sit on their hands and not find the kid eligible, but just wait until the parents find some other solution."

The Education Department said in a friend-of-court brief that a policy precluding reimbursement for students who had not already received special-education services in the public schools would produce "absurd results, especially in cases like this one, where the only reason the child did not receive public special education is that the school wrongly refused to provide it."

But the Forest Grove district, backed by New York City and many school groups, argues that unless reimbursement is limited to those who have previously received special-education services in the public schools, families have a troubling incentive to keep their children out of public school.

"The whole point of IDEA is to encourage cooperation between parents and school districts to ensure the education of disabled children in as mainstream a setting as possible," said Michael Best, general counsel to the New York City Department of Education. "If you allow parents to place their children in private school without ever trying public school, it undermines that cooperation."

Mr. Best said reimbursing parents for private-school tuition, even if they never considered public school, would lead to a ridiculous situation in which parents who tried public school and complied with the procedures to determine whether private-school placement was required would have a harder time getting reimbursement for private-school tuition than those who never set foot in public school.

The New York City schools paid $89 million for private-school placements for disabled students in 2007-08, up from $53 million two years earlier.

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