Schools Stymie Justices
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Parents who want to send a disabled child to a private school at government expense no longer face as high a hurdle, at least in New York City.
A split decision by the U.S. Supreme Court yesterday will have the effect of forbidding the city’s Department of Education from demanding that children with special needs first try out the public schools before they seek reimbursement for a private education.
The eight justices who heard the case — Justice Kennedy recused himself — split 4–4. The divided decision leaves standing a ruling against the education department that a federal appellate court in Manhattan handed down last year.
That lower court ruling carries no weight beyond three states. In the rest of the country, the vast majority of school districts are under little, if any, court guidance on the issue. The precise question that the Supreme Court’s split decision did not answer was whether disabled children are entitled to reimbursement for a private education only after they have been enrolled in a public program and found it to be inadequate. That requirement has been criticized by some parents who say it forces children to waste time at programs that are a poor fit for their special needs.
Under the federal Individuals with Disabilities Education Act, which covers children with disabilities ranging from dyslexia to autism to severe physical handicaps, a school district is responsible for paying to send a child to a private school if the district is unable to provide an “appropriate” public education. During the last school year, the city received 3,675 such requests. In about half, the child had never before tried a public special needs program, according to figures provided by the education department. When the city does pay to send a child to a private school, the average cost is $27,000 a year, although the costs can approach $300,000 for some intensive programs.
One school official said the decision yesterday ensures that the rising number of reimbursement claims the city has faced in the past five years “will only increase.”
The lawyer who argued the case against the city, Paul Gardephe of Patterson Belknap Webb & Tyler LLP said he predicted the ruling would encourage more tuition reimbursement claims by focusing the attention of parents on the benefits provided under IDEA.
“Just the publicity may spark more of this,” he said.
Yesterday’s brief order gives no indication of how each justice voted. It is unclear whether Justice Kennedy is recusing himself from all cases involving this issue. It is unlikely the court would agree to take a similar case anytime soon without a full panel of nine justices available to decide it.
The case, Board of Education v. Tom F., was brought by a former executive at Viacom, Thomas Freston, on behalf of his son, Gilbert, who is now a high school senior. The city had at first agreed to send Gilbert, who was diagnosed with attention deficit hyperactivity disorder, to the private Stephen Gaynor School on the Upper West Side without demanding that he first try a public program. But after two years of paying Gilbert’s tuition, the city told Mr. Freston that Gilbert would need to see if a public program was an appropriate fit.
A statement yesterday sent on behalf of the plaintiff stated that he brought the case “to ensure that our government, as a matter of public policy, fulfills its obligations to families by ensuring they have access to suitable special education programs.”
Yesterday, Mayor Bloomberg defended the city’s decision to demand that the Frestons enroll their son in a public school before putting in a claim with the city.
“They just decided their kid needed private schools and never sent their child to public schools and just sent us a bill,” Mr. Bloomberg said. “We thought that that was not appropriate, that the city can’t afford to send every child to private school.”
A federal appellate court with jurisdiction over three southern states, the 11th Circuit U.S. Court of Appeals, has ruled that parents need not first send their children to public schools to be eligible for reimbursement. The same holding by New York’s 2nd Circuit, which was allowed to stand in yesterday’s decision, is binding over New York, Connecticut and Vermont. But the 1st Circuit Court, which covers Massachusetts, Rhode Island, Maine, and New Hampshire, reached the opposite result in a 2004 decision.