Special Education

High Court Case Could Rein In Private Placements Under IDEA

By Mark Walsh — September 24, 2007 9 min read
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On the first day of the new U.S. Supreme Court term next week, the justices are sure to hear starkly contrasting portraits of special education in the nation’s largest school district.

In a case from New York City, the 1.1 million-student district argues that school officials made every attempt to provide an appropriate education plan under the federal Individuals with Disabilities Education Act for a young student with a learning disability. But the boy’s father rejected a proposed placement in an elite public school program, the district says, and seemed intent on enrolling his son in a specialized private school and seeking public reimbursement for the tuition.

The district’s allies go further to contend that in New York and elsewhere, wealthy parents of students with disabilities have learned to manipulate the system to win public payment for a private education.

“These parents, who never intended to use the public schools, unilaterally place their child in the private school in which they planned to enroll their child all along, and then request reimbursement, hoping for a windfall,” says a friend-of-the-court brief filed by the Council of the Great City Schools and the National Association of State Directors of Special Education.

On the other side, the father maintains that he cooperated fully with efforts to evaluate his child and to devise an individualized education program for him, but that the district’s plan was poorly conceived and inappropriate under the law. And it was delayed, he says, to the point that he had no time to reasonably consider the public school placement.

“There is no evidence that any gaming of the system occurred here,” says the brief filed by lawyers for Thomas E. Freston, a New York media executive.

‘High-Stakes Matter’

The appeal in Board of Education of the City School District of the City of New York v. Tom F. (Case No. 06-637) holds potentially major implications for the costs of special education, both for states and school districts, on the one hand, and for parents on the other.

Private School Placements Under the IDEA


Parent advocates point to these statistics as an indication that placements of special education students in private schools at public expense are relatively rare:
Private education placements, 2003-04

Note: Figures include school district placements, as well as unilateral placements by parents.
SOURCE: Education Next

Advocates for school districts point to figures detailing the number and cost of ‘unilateral’ private placements in the nation’s largest school district:
Unilateral private school placements in New York City, 2005-06

SOURCE:New York City Department of Education

The question before the high court, which will hear arguments Oct. 1, is whether parents can win reimbursement for so-called unilateral placements of their children in private schools under the IDEA when the children have never received education or related services from the public system.

“Tuition reimbursement is a high-stakes matter,” said Perry A. Zirkel, a professor of law and education at Lehigh University, in Bethlehem, Pa., and a leading scholar on special education law. “In just about every case, tuition reimbursement is high stakes for the district because a private school placement is considerably more expensive. And it’s high stakes for the parents because they’ve taken a risk.”

Under the IDEA and Supreme Court case law, parents who are dissatisfied with a public school education plan for a child with a disability may “unilaterally” enroll the child in private school. If a court agrees that the public school placement or plan was inappropriate, and the private school placement was appropriate, it may award the parents reimbursement for the private school tuition.

Mr. Freston is a co-founder of the MTV cable channel and a former executive of its current parent, Viacom Inc. He received a reported severance package worth some $85 million when he was forced out as the company’s president and chief executive officer last year.

Mr. Freston declined to be interviewed by Education Week about the case, but he clearly bristles at the suggestion that he is one more well-heeled New York City parent who entered the special education process without intending to enroll his child in a public school.

“Children with special education needs have a right, without jumping through hoops, to attend schools capable of providing them with an education that accommodates their individual needs regardless of their family’s financial means,” he said in a statement. “While I was fortunate to have the means to provide such an opportunity for my child, many families are not able to do so.”

According to court papers, Mr. Freston’s son Gilbert has attention deficit hyperactivity disorder and other learning disabilities. He was born in 1989 and was first evaluated by the New York school system in 1996. The district classified him as learning-disabled, and it developed an individualized education program, or IEP, for him.

Mr. Freston believed the IEP was inappropriate, and he enrolled his son in the private Stephen Gaynor School in Manhattan, which specializes in teaching children with learning disabilities, the court papers say. He sought tuition reimbursement for the 1997-98 school year, and the district chose not to defend the adequacy of the IEP. The district agreed to reimburse Mr. Freston for tuition at the Gaynor School that year. The same process was essentially repeated for the 1998-99 school year, with the school district choosing not to defend its IEP and paying the private school tuition.

Mr. Freston said in his statement that has contributed some $50,000 from the reimbursements for those two years to establish a learning center in another New York City public school.

For the 1999-2000 school year, the district developed an IEP and recommended that Gilbert be placed at the New York City Lower Lab School for Gifted Education, a school-within-a-school that is described as a coveted option within the public system. The district says in court papers that Mr. Freston never visited the school or met with any of its representatives.

According to Mr. Freston’s lawyers, district officials made the placement decision in July 1999, when the public school was not in session and there would have been nothing substantive to visit. Furthermore, they contend, the IEP was again defective because it would have assigned Gilbert, who was doing 4th-grade-level mathematics, to either a class doing kindergarten-level work in that subject or to a gifted class that would have exceeded his abilities.

Mr. Freston again enrolled his son at the Gaynor School and sought reimbursement. Tuition at the school for 1999-2000 was $21,819, the court papers say.

Mr. Freston prevailed in state administrative proceedings, which held that the district had not shown that its recommended placement was appropriate.

The school district took the case to the U.S. District Court in Manhattan, where it won a ruling that it did not have to reimburse Gilbert’s father. Mr. Freston appealed to the U.S. Court of Appeals for the 2nd Circuit, also in New York. On the central issue of whether a child had to receive special education services in a public school before his or her parents could win reimbursement for a private school placement, the appeals court sided with the parents.

The school district, now known formally as the New York City Department of Education, appealed to the Supreme Court, which agreed last spring to hear the case.

Public School ‘Tryout’?

The New York district’s chief argument lies in language that Congress added to the IDEA in its 1997 reauthorization of the law.

“Congress restricted the availability of reimbursement and provided that tuition reimbursement for a unilateral public placement may be available only when the student ‘previously received special education and related services under the authority of a public agency,’ ” the district’s brief says.

The district cites a House floor statement by Rep. Michael N. Castle, R-Del., who then, as now, was a leader on special education issues.

The IDEA “has resulted in school districts unnecessarily paying expensive private school tuition for children,” Rep. Castle said in 1997. “This bill makes it harder for parents to unilaterally place a child in elite private schools at public taxpayer expense, lowering costs to local school districts.”

But lawyers for Mr. Freston argue in his brief that the 1997 legislative language was not intended to impose a mandatory “tryout” period in which children with disabilities would have to attend public schools before their parents could unilaterally place them in private schools.

“Forcing children to make a ceremonial appearance in public school in order to qualify for tuition reimbursement accomplishes nothing,” the father’s brief says.

Mr. Freston has a powerful ally on that and other points: the Bush administration, which argues in a friend-of-the-court brief on his side that there is no requirement that children enroll in public schools before their parents can follow the unilateral-placement path.

Solicitor General Paul D. Clement argues in the brief that that has been the interpretation of the U.S. Department of Education. He notes that both then-Secretary of Education Richard W. Riley, in issuing regulations on the 1997 amendments to the IDEA, and Secretary Margaret Spellings, in doing the same for the rules interpreting the 2004 renewal of the law, declined to impose a rule requiring special education students to enroll in a public school before tuition reimbursement could be sought.

Both Mr. Freston’s lawyers and the Bush administration seek to counter a key argument made by the New York City district and its allies—that the costs of unilateral private placements are especially onerous for the public schools.

They point to an analysis by Jay P. Greene and Marcus A. Winters, of the University of Arkansas at Fayetteville and the Manhattan Institute for Policy Research, a New York City think tank, that appeared earlier this year in the journal Education Next. In the analysis, the authors use federal data to show that the number of special education students being educated in private schools at public expense amounts to just 0.18 percent of the total public school population. The data include private placements initiated by districts, as well as unilateral placements by parents.

‘Substantial Burden’

“The fact is that private placement is extremely rare,” Mr. Greene and Mr.Winters state in their article.

But New York City education officials beg to differ.

In 2005-06, the most recent year for which complete figures are available, the school system spent $49.3 million on unilateral placements of children in private schools. That does not include private school placements the district made on its own. The average claim for reimbursement that year was $26,615, and the district says it has received one reimbursement claim for $230,000 for a single year of private services for one child.

“It’s a very significant amount,” Michael Best, the general counsel of the New York City district, said in an interview, referring to the price tag for unilateral placements. “Paying for unilateral private placements is a substantial burden on the New York City schools, and we think it is a substantial burden nationally.”

Julie Wright Halbert, who wrote the brief for the Council of the Great City Schools, a Washington group that represents large urban districts, said the IDEA envisioned that districts would pay to place a certain children, such as some of those with severe disabilities, in private schools.

But for the large number of children in special education because they have learning disabilities, most districts have experts and procedures in place for providing the appropriate services, she said.

“If you have every child with some type of learning disability, who the public schools are able to serve, being placed in private schools, you are going to bankrupt the public system,” Ms. Halbert said.

A version of this article appeared in the September 26, 2007 edition of Education Week as High Court Case Could Rein In Private Placements Under IDEA


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