By Mark Alter, PhD, Joan Rosenberg EdD and Neal Rosenberg Esq.
In October 2007, the United States Supreme Court ruled for the parents of a disabled child in New York City Board of Education v. Tom F and, once again, this issue was addressed by the courts in the Forest Grove School District v. T.A. 523F.3d 1078 (9thCir.2008).The Supreme Court ruled that parents of special-education students may seek government reimbursement for private school tuition, even if they have never received special-education services in public school. In its decisions, the high court affirmed that parents of a disabled child are entitled to tuition reimbursement under Individuals with Disabilities Education Act (IDEA)-even if that child has not previously received any public special education services. The cases encompassed the heart, soul, spirit, and source of all the issues in special education: What is appropriate? What is the least restrictive environment, and what are the conditions that will enable the delivery of the individualized plan for a student with a disability?
A cornerstone of special education is the determination of the Least Restrictive Environment--that is, the classroom conditions that enable the delivery of an appropriate education. Though an appropriate education in many cases may be in a private school, it had not previously been determined if a family is eligible for reimbursement of education expenses for private school. Prior to the high court's ruling, for parents to be eligible to obtain reimbursement for placement in a private school, they had to prove (and this still exists today) that the school district did not offer their child a free appropriate public education. In addition, the parents also had to demonstrate that the private program they selected provided their child with an appropriate education. How or what do the courts rely on to render a decision?
Our discussion begins with a brief overview of litigation affecting placement in special education. Section 1415 of the Individuals with Disabilities Education Act grants broad equitable powers to a Court to order appropriate relief, including private school tuition reimbursement, where a school district has failed to provide FAPE. In keeping with the IDEA's broad remedial provisions, New York's implementing statute permits "parents who object to a proposed IEP [to] request an "impartial due hearing' before a hearing officer" and then subsequently to appeal an unfavorable decision to a court. Board of Educ. of Pawling Central Sch. Dist. v. Schultz, 290 F.3d 476, 481 (2d Cir. 2002), citing N.Y. Educ. Law §4404(1). In Burlington, the Supreme Court made clear that Section 1415 provides courts with broad discretionary power to order reimbursement for children with disabilities unilaterally placed by their parents in private schools: The statute directs the court to "grant such relief as [it] determines is appropriate." The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be "appropriate." The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as non-handicapped children, but the Act also provides for placement in private schools at public expense where this is not possible (Burlington, 471 U.S. at 369). Burlington interpreted the IDEA as providing broad powers to a reviewing court to grant reimbursement for unilateral private-school placement where (1) the IEP is later found to be inappropriate; (2) the child's private school placement is found to be appropriate; and (3) equitable considerations favor the granting of relief to the child.
What evidence is relied on for the courts or even a parent to make an "appropriate education in the least restrictive environment" decision? Gottlieb & Alter (2002) point out that the research regarding special education is quite clear; beneficial results on behalf of students with disabilities are possible when effective programming is in place and when a variety of steps are taken by the schools to increase the chances for success. But here's where the issue gets messy. In urban settings, special education systems continue to struggle with general education's fallout. Teachers, principals and school staff must be knowledgeable and involved in the implementation of a range of academic, social and emotional instructional strategies and interventions as well as behavior plans--or the placement of the student will be inappropriate whether he or she is placed in general education or in special education. Critics of segregated special education argued convincingly and correctly that students with disabilities can be educated in the general education classroom. However, if that were true the vast majority would not have been referred, screened, evaluated, found eligible, and placed in special education.
IDEA provides a court with broad discretion to craft remedies for a failure to provide FAPE. The statute authorizes courts to order reimbursement for private school expenses when a school district is unable to provide FAPE on a timely basis-even when a placement is made unilaterally. Consistent with Burlington, no court has ever held-until now- that a parent like Mr. F., who has requested special education services, cooperated with a CSE, and fully participated in the IEP process is barred from reimbursement simply because his child never attended a public school. Since Burlington, courts have consistently held that Section 1415 authorizes an equitable remedy of reimbursement, even for children placed in private schools unilaterally-as long as the parents notify the school district that FAPE is at issue and cooperate with the school district's efforts to provide FAPE.
Nothing in the statutory language, legislative history, or applicable regulations requires, either expressly or by implication, that a child have attended public school in order to be deemed to have "received special education and related services under the authority of a public agency. "Had Congress wished to impose such a requirement, it easily could have done so. To the contrary, all of the statutory language and regulations indicate that the term "special education and related services" provisions should be interpreted broadly to ensure the provision of FAPE to as many eligible children as possible. For example, the regulation defining, "special education" states that the term means "specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability." 34 C.F.R. §300.26. This includes instruction in a variety of venues, including at home, in institutions, and in "other settings," which has been interpreted to include private schools. See Burlington, 471 U.S. at 359. The provision is broadly drafted and is clearly intended to capture many types and natures of "instruction" in order to provide a child with a disability with an appropriate educational experience commensurate with his or her abilities.
In summary, if the Court rules that a child is required to attend a public school for some period of time in order to qualify for reimbursement of private school expenses it is not only unjustified based on the plain language and aims of the statute, it would also create perverse incentives and undermine the purposes of the IDEA. Dissatisfaction with special education in no way implies that general education can effectively deliver an appropriate education for many of the students with disabilities.
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