High Court Seems To Tilt Toward City on Special Ed

The Supreme Court appears poised to make it more difficult for the parents of children with disabilities to get the government to pay for a private education.

On the first day of the high court's new term yesterday, several justices seemed to side with New York City's interpretation of a federal law that requires school districts to pay for children who require specialized teaching techniques to attend private schools. The case was brought by a former Viacom executive, Thomas Freston, on behalf of his son, Gilbert, who was diagnosed with attention deficit/hyperactivity disorder. The city originally had agreed to pay for Gilbert to attend the Stephen Gaynor School on the Upper West Side, which specializes in such students, then reversed course, arguing that it must pay for private tuition only when public programs for such students are inadequate.

Mr. Freston sued to force the city to pay for his son's schooling, and the U.S. 2nd Circuit Court of Appeals in Manhattan ruled in his favor.

The city has argued that students must first try out public school programs before being eligible for reimbursement. Advocates for children with disabilities say this requirement would condemn children to passing time in classrooms that aren't geared to their particular needs. In the case at issue, Gilbert had never been enrolled in a public program.

From the tone of the questions and comments from the bench, it appeared that a majority of the eight justices hearing the case may favor the city's position. (Justice Kennedy has recused himself from the case.) Such a ruling would not only disappoint advocates for children with autism and other conditions who require specialized teaching techniques, but also proponents of school choice, who have followed the case closely, seeing a link to their preference for public funding of private education.

Justice Scalia's questions suggested that, if the city's interpretation is rejected, New York will end up paying to educate privately children whose parents wouldn't consider sending them to public schools.

"There are a lot of parents who are going to send their children to private school no matter what," Justice Scalia said. "They are well-heeled and this is just an opportunity to have New York City pay $30,000 of it."

The city received 2,240 tuition reimbursement requests for the 2005–06 school year for children with disabilities, about half of whom were never enrolled in public schools.

Chief Justice Roberts also seemed sympathetic the city's argument that students such as Gilbert could be required to first try out what the school district has to offer before the government was required to pay for a private school program.

"The useful purpose it serves is to allow the school district to show what it can do," the chief justice said. "It allows some actual concrete practice to see if the plan that the public school has developed is going to work or not going to work."

But Justice Alito disparaged that argument, questioning what purpose was served by requiring students to try out classes they might attend for only a few days, just to fulfill the requirement. "Why is it that, even as you read the statute, there's no requirement that the child remain in the public school system for any significant period of time?" he asked.

The statute in question refers to children who have "previously received special education" by a public agency, but it does not mention for how long a student must have been enrolled.

Justices Souter's and Breyer's questions, however, seemed more skeptical of Mr. Freston's position, represented before the court by Paul Gardephe of Patterson Belknap Webb & Tyler. The federal government, which has sided with Mr. Freston against the city, was represented by a deputy solicitor general, Gregory Garre.

The city's top appellate lawyer, Leonard Koerner, argued on behalf of New York.