Earlier this week, the SCOTUS made a ruling concerning special education and private tuition reimbursement. you can get a quick summary from the Washington Post here. You can also get a summary from the SCOTUS blog and read up on it in a couple of posts from Jim Gerle’s Law blog. He’s also got a link to the pdf file of the decision slip.
I first want to correct the first line of the washington Post article:
Parents of children with disabilities may seek reimbursement for private school tuition even if they have never sent their children to public schools, the Supreme Court ruled yesterday in a decision with wide-ranging implications for Washington area school systems.
That is not necessarily the case. Basically, this case involved a student who was entering high school and his parents were concerned about the student’s lack of academic success. So they made a referral for services. The school counselor did some testing and found that the student was not eligible for services. As such, no IEP was written. The parents were still concerned during the student’s 10th grade year but the student was still not deemed eligible for services according to school testing. So the parents eventually obtained a diagnosis for learning disabilities and ADHD. They withdrew him from his high school and placed him in a private school that specialized in providing services for students with LD and ADHD. It was during this time that they began filing for due process against the school for failing to provide FAPE, and sought reimbursement for the private school tuition.
The student finished his junior year at the private school and graduated from there the following year in 2004. Yeah, this case has been dragging on for six years! And for most of that time, the student was pressing the case forward since the parental rights trnasferred to him at 18.
The school argued that the law provides for the reimbursement for students who have already been served in special education for at least one year. But this student was never served in special education. The WaPo article leads the reader to believe that the student never attended the public school, but in fact he did for most of his school career. But he never received special education services and never had an IEP. One major argument given by the prevailing side in this case was the fact that a school district could easily avoid all special education costs by simply not identifying students, which clearly flies in the face of the intent of the IDEA.
The school district argued that having to reimburse tuition for students who never had received services and whose parents unilaterally put their child in a private school would place an undo burden on the system financially. Private schools serving special ed. students are not cheap. This one attended by this student was a residential school, so we could easily be talking over $100,000 for this one student. So, yeah, the district is going to fight!
Will this result in bankrupting school budgets? I doubt it. Remember that by the time this thing settled, the student was probably graduated from college! The time and persistence in getting through all the legal proceedings routinely takes several years. By the time this case got only to district court level, the student was already done with school. But the school does have a case that parents might be more aggressive about pursuing their rights. Given the time it takes to get resolution on a case like this, a parent needs to start early in order to be assured of getting their child needed services. Unfortunately, it is sometimes necessary to be an attack dog on a school system because the culture of discrimination and prejudice runs so deep and is so pervasive. Don’t believe me? Look at the Atlanta Journal Constitution blog on the subject and read the comments. Students with disabilities are routinely scapegoated in the comments, whether or not that is actually the topic on this blog. They actually got off kind of light, here.
Another reason why the impact of this is going to be somewhat minimal is the simple matter of there not being very many private schools who are willing to take and cater to students with special needs. Georgia already has a law that offers a $10,000 voucher/scholarship for any student that wants one and very few ever take advantage of it. And you can simply forget about any of my students ever being included in anything like that. The impact on my students and their parents because of this ruling is ZILCH because there is not a private school anywhere that is going to take them, even if parents wanted to take advantage of any scholarship. And no private school would house a student through their 22nd birthday.
You’ll hear a lot of noise from both sides of this issue, but I think it’s mostly a zero-sum game. Parents aren’t going to be able to get tuition reimbursements whenever they want. Even if they did get a favorable decision, it would likely be several years and several thousands of dollars after their child started a private school. A parent would need the means to afford the tuition well in advance of challenging a school district. The district still has the upper hand, but with stakes a bit higher they have more of a reason to work with parents instead of blowing them off.
The RTI and POI procedures, if they are followed and implimented correctly will also head-off a lot of these sort of challenges. These procedures were not widely implimented in 2003, if at all, so there is already a procedural safeguard with documentation that is built-in to the process. Today, there would be more than just one test and a one-time procedure for getting additional help. IF it is implimented. That’s a big “if.”
I encourage anyone interested in special education law to read the case, as it isn’t often a special education case makes it in front of the Supremes. I’m betting against this being a big decision that changes the game, but I could be wrong.