A Few Comments on the Supreme’s Ruling

25 Jun

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.

5 Responses to “A Few Comments on the Supreme’s Ruling”

  1. davidpusey at 5:27 pm #

    Loved reading your views. Just as a clarification, the special ed voucher you referred to, the Georgia Special Needs Scholarship, is worth what the state of Georgia would pay to educate a child. This varies student to student based on the severity of the disability as delineated in the IEP and the number of hours that disability is served. The average scholarship in 2008-09 was about $6,600.

    It’s a super program. This year almost 1,600 kids were able to get an education that serves their unique needs. And don’t forget, if there is a public school that you like that does a great job serving your child’s special need, the Scholarship allows you to transfer there if you want!

    You can learn more under the “For Parents” section at http://www.educatedgeorgia.org.

  2. Erin at 11:37 pm #

    Hi Dan,

    Your posts are so entertaining! My name is Erin, and I am a college student with mild cerebral palsy. I’m a special education major and have hopes of becoming a disability services director of a university after graduate school. I have just launched a blog that is still getting started, but with the title “Empowering People and Changing Lives,” I hope that it will provide a wealth of resources for people who care for children, specifically those who are affected by disability. I will also be chronicling some personal experiences and will be sharing some thoughts about those along the way. Your blog has also been included in my blogroll, so I hope that together, we are able to collaborate to provide resources to those who are in similar situations. The blog’s address is http://empowerpeoplechangelives.blogspot.com. From there, you will be able to read the posts I have written, find out all about me, check out my blogroll, eventually look at many resources I have gathered, and contact me.

    Look forward to reading many more of your posts! Happy blogging!

    P.S. I was the owner of the Future Special Education Teacher Blog!

  3. Daniel Dage at 3:15 pm #

    Thanks for stopping by and commenting, David! I went over to your site and it is really attractive! I now feel I need to spruce this place up a bit. While it is true that the Special Needs Scholarship does allow transfers to other schools, there are still conditions that apply, such as whether or not a particular school has space. I’m continually coming up against this as THE most experienced SID/PID teacher in our county. I’m full and over my numerical limit and I still have parents who want their kids in my classroom! While this is flattering, it puts a strain on my existing staff, students and facilities. And me. But generally, I do favor school choice in principle. But it never quite works out quite the way it was designed because of the complex funding issues.

    Hello Erin and thanks for stopping by and commenting! Glad to see you’re still pursuing your interests in special education! Anything I can do to help you along, just let me know. You’ve got a really good start on the whole Personal Learning Network and self-branding concept.

    Looks like I need to fix my blogroll!

    • Erin at 5:16 pm #


      What’s your e-mail address? Would like to ask your opinion on several issues.


  4. Unconditional mom at 4:00 pm #

    The point of the case is well made– it takes FOREVER to address issues through the legal system, and most parents won’t wait, and will save the school system lots of money by withdrawing their child.

    This child who waited could have been either of mine. My son was never identified for services, though he has significant LDs and ADHD. We ended up taking hime out and paying more than $120,000 for tuition, but it helped him graduate, and he’s done very well in a competitive college studying business, which plays to his strengths rather than his writing deficits.

    Unfortunately, my daughter wasn’t able to “make it” in the independent school and continued to deteriorate emotionally. (See previously posted story below). She still has never been identified for an LD by our district, despite ample testing evidence, and a pattern of retaking math classes and still having the same problems.

    Last fall, she returned to her local high school half time, while still receiving the services she needed at her nonpublic EBD school, funded by the district, including special ed for her LDS, and she was able to complete geometry, algebra 2 and consumer math, though with lots of support.. Guess what?? It worked! Although she is dealing with her issues still but has many more skills at her disposal. She is returning to her public school full-time for her senior year, will only require very basic accomodations, and will very likely be attending college. Though she will never be a great math student (with a 500 on her SAT), she fortunately is a very gifted writer, and will likely be fine in college, in a program that doesn’t have formidable math or science requirements.

    Thanks again EBD teachers and therapists!

    12. Unconditional mom – August 14, 2008
    Thank you EBD teachers and professionals!

    I am a parent of a 16 yo girl w/anxiety/ADHD/NVLD/bipolar disorders. Her illnesses became severe in 8th grade. In 9th grade, she attended public high school, and despite accommodations, could only manage school half day and had home&hospital teaching. After she was hospitalized and her coding was changed from OHI to ED, the district recommended a cluster-based program in another very large school, w/only 10 hours of related services. We felt this would be inadequate and wanted a more restrictive/therapeutic setting, but also knew that due process lawsuits in our district fail in most cases (including those with expensive lawyers).

    So, we enrolled her in a private school w/65 kids and very small classes, hoping things would improve. But her illness worsened and two months later she had another crisis was hospitalized twice more. We returned to public schools and by January, she was placed in the very program her (private) treatment team had recommended. To be clear, we’ve had to fight for her services every step of the way, and being her “case manager” is a fulltime job, and emotionally exhausting. But it has been worth it.

    In 7 months, she has had an amazing recovery, primarily because clinical experts could provide ongoing feedback to her psydoc to adjust meds until symptoms abated; PLUS complexity of academic work was reduced until she could manage more; intensive group, individual and family therapy helped her to progress w/goals and address problematic behaviors; skilled teachers shared info and supported her no matter what; the environment was incredibly calm and soothing.

    Seeing my daughter smile, have fun and enjoy life is such an amazing gift. Tomorrow, we will learn whether our district will allow her to return to her home school on a partial basis, hopefully for the year. She has lost teen years, academic credit and standing, but she is stronger every day. Thanks to all the parents who support their EBD kids no matter what, and to the teachers and other professionals who hang in there with our kids, even when things are most difficult!

    In my district of almost 140,000 kids, very few receive the services that my child did, though the need is certainly there. We realize that she (and we) are incredibly fortunate. A year ago, if you had asked me whether she would even be alive in another year, I might have started to cry, because I knew there was a possibility that she might not make it if we couldn’t find a way to manage her illness better.

    I’m not sure what it woill take to make the changes for all kids, but I am committed to do what I can to create positive changes in my own community, so that other kids can also have the same chance my daughter has had. Wish us luck!.

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