9 Could Rescue Disabled Pupils

The U.S. Supreme Court, in a little-watched case with potentially enormous implications here for parents with learning-disabled children, will decide whether the former chief executive officer of Viacom can recoup his son's private school tuition from the city of New York.

A decision on the matter by the federal high court, which agreed yesterday to hear the appeal, will determine what steps the parents of disabled children must take before they can ask the city to pay to send their children to private schools. Under federal law, schools must provide disabled children with an "appropriate" education. If a school district is unable to do so, parents can ask a federal judge to order the school district to pay for a private education.

The precise question before the federal high court is whether parents must first try a public school's special education programs before asking the city to pay for private schooling. In about half of the 2,200 tuition reimbursement requests last year, parents had not first enrolled their children in a public school, a spokeswoman for the Department of Education said.

The case is being brought by Thomas Freston, who was ousted as the CEO of Viacom last year. A lawyer who handled the case for Mr. Freston before two lower courts, Neal Rosenberg, said a win for the city could pressure parents to send their children to public schools that cannot accommodate them.

"This is an additional obstacle to parents that would mean you must first allow the Department of Education to try to educate your child," Mr. Rosenberg said. "Only after you have allowed your child to be made a guinea pig, can you seek reimbursement."

"This is not about setting anybody up for failure," the general counsel for the Department of Education, Michael Best, said, adding that parents seeking reimbursement often do not even consider the special education program offered by the city.

"This is about who is going to pay when a parent unilaterally decides to ignore the resources available in public schools and sends the child to private schools instead," Mr. Best said in a telephone interview.

City lawyers claim that Mr. Freston did not so much as consider accepting placement at the Lower Lab School for Gifted Education, where the city had developed an educational plan for his son, Gilbert Freston, now 17. The case began in 1999.

Public court documents describe Gilbert Freston as learning disabled, but do not specify the nature of the disability.

The Frestons did not meet with representatives from the school or even visit it, according to court documents.

In instances like this one, Mr. Best said, "If a parent wants to exercise his or her right to send a child to private school, that's fine. But we shouldn't have to pay it," he said.

The case is docketed anonymously, with the father identified only as Tom F. But Mr. Rosenberg yesterday identified his client as Mr. Freston.

Mr. Freston left Viacom with a severance package reportedly worth more than $80 million. The city has already paid Mr. Freston upwards of $50,000 to reimburse his son for tuition at the Stephen Gaynor School for students with learning disabilities, Mr. Rosenberg said. The school is on West 90th Street, Mr. Rosenberg said.

Mr. Freston sought reimbursement on "principle," his attorney, Mr. Rosenberg said, "He certainly didn't need the money."

Mr. Freston donated the tuition reimbursement, plus a gift "way into the six figures" back to the school, Mr. Rosenberg said.

The head of the Stephen Gaynor School, Scott Gaynor, confirmed that Mr. Freston had made a donation to the school. With Mr. Freston's money, the school established a learning center at which teachers from the school tutor first graders from nearby P.S. 82 who have difficulty learning to read.

Mr. Gaynor said the learning center, which opened last month, has been five years in the making. He said he did not know the amount of Mr. Freston's donation. Tuition at the school now costs $36,700 a year.

A call to Mr. Freston's home was answered by a man identifying himself as the house manager, who said Mr. Freston was out of town and unreachable for comment.

Mr. Rosenberg said Mr. Freston, whose name was not publicly linked to the suit until yesterday, was not pleased that the U.S. Supreme Court had taken the case.

"It's not an honor here," Mr. Rosenberg said of the Court's decision to review the matter, which had been resolved by an appellate court in favor of the Frestons. "He's very concerned about shielding his son from any publicity in this case," Mr. Rosenberg said of Mr. Freston.

The precise issue before the U.S. Supreme Court will be to interpret a 1997 amendment to a federal law, the Individuals with Disabilities Act. A U.S. district court judge in Manhattan, George Daniels, found that the law did not allow parents of students who did not first attend a public school to be eligible for tuition reimbursement. The 2nd Circuit U.S. Court of Appeals disagreed in a related case. The circuit's opinion, written by Judge Edward Korman, found that Judge Daniels' decision "turns on the erroneous assumption" that parents need to send their children to public school for "a wasted year of actual failure" before applying for tuition reimbursement.

Today, the U.S. Supreme Court is set to hear a related case about whether parents are allowed to go to federal court without an attorney to represent their children in tuition reimbursement cases. A Supreme Court ruling against the parents would spell an end to these lawsuits in many parts of the country, where there is a lack of lawyers who specialize in litigation on behalf of schoolchildren with disabilities. In New York, where there is a small specialized bar of attorneys who handle these cases, a ruling against parents would have a more muted effect.