Special Education

‘Unilateral’ Placements Face Review

By Christina A. Samuels — March 06, 2007 6 min read
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The U.S. Supreme Court has agreed to step into one of the most contentious and costly areas of special education law by accepting a case involving a parent’s efforts to seek public reimbursement for a private school placement of his child.

The justices in their next term will take up a case in which the New York City school system is balking at reimbursing a parent for private school tuition when his child never spent any time in the city’s public schools.

In its appeal, the 1.1 million-student New York district contends that it offered an appropriate placement for Gilbert Freston, now 17, but that the boy’s father, Thomas E. Freston, never planned to accept it. The father says that the district failed to meet his son’s needs.

The Supreme Court held in a 1985 case, Burlington School Committee v. Massachusetts Department of Education, that under the federal Individuals with Disabilities Education Act, parents who “unilaterally” remove their children from public schools and enroll them in private schools are entitled to public reimbursement when courts later determine that the school district’s placement was inappropriate and that the private school placement was appropriate.

Although no reliable statistics are readily available, such reimbursements are routinely ordered by lower federal courts under the proper circumstances, and school districts say they are a significant expense.

Michael Best, the general counsel of the New York City district, said that the school system paid tuition for 2,240 unilateral placements during the 2005-06 school year. He estimates that half those cases involved students who had never attended New York City public schools. The average tuition cost for unilateral placements that year was $29,000, bringing the district’s total outlay to about $6.5 million for that school year.

Mr. Best said that the city is willing to pay for private school tuition when it cannot provide an appropriate placement for a child. But that’s just not true in the case accepted by the high court, he maintained. And the argument that students have to suffer in public school placements “is a complete red herring,” he said.

“That assumes that if a kid has to go to public school to get special education, it’s somehow going to be bad,” he said. “That’s completely wrong.”

Public School First?

Mr. Freston, the parent in New York City Board of Education v. Tom F. (Case No. 06-637), is a co-founder of the cable channel MTV and a former Viacom Inc. executive who reportedly received a severance package of $85 million when he was ousted as the president and chief executive officer of the media company last year.

Neal Rosenberg, Mr. Freston’s lawyer, said that the special education case is not about money. Mr. Freston sought an individualized education program for his son from the New York City district because he wanted the boy to receive transportation services and because of the principles involved, he said. His son was entitled to an education provided by the city, Mr. Rosenberg said.

“I have never found a parent who was grateful that they had a handicapped child so that they could get the district to subsidize the education of that child,” Mr. Rosenberg said. The district’s arguments that prior enrollment in public school should be a prerequisite to reimbursement are saying, in effect, that parents “have to make a guinea pig of their child,” he said.

Mr. Freston enrolled Gilbert in the Stephen Gaynor School in New York City, a private school for children with special needs, in the fall of 1995, when the boy was 6. In 1997 and 1998, the New York City district established an individualized education plan for Gilbert, which the school district acknowledged was inadequate, Mr. Rosenberg said. The district reimbursed Mr. Freston approximately $36,000 for those two years. Mr. Freston donated the money received from the public school system district to the private school, his lawyer said.

In 1999, the district offered a different placement for Gilbert. Despite never having visited the public school suggested for his son, or any of the other public schools suggested for him in the past, the district’s brief says, Mr. Freston again sought reimbursement, this time for about $18,000 for the 1999-2000 school year.

Mr. Best said that the district, in making an effort to re-evaluate some tuition-reimbursement cases, zeroed in on this case because Gilbert Freston had never attended public school.

But in April 2001, a state special education hearing officer determined that the district had not met its burden of proving that its recommended placement was appropriate for the student. On appeal, a state review officer upheld the hearing officer’s decision.

The school system prevailed, however, when it took the case to U.S. District Court in Manhattan. In a July 2005 decision, U.S. District Judge George B. Daniels wrote that the text of the IDEA suggests “that where a child has not previously received special education from a public agency, there is no authority to reimburse the tuition expenses arising from the parent’s unilateral placement of the child in private school.”

The father appealed and last year, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, overruled the district court, applying the reasoning of a recent decision the 2nd Circuit court had made in a similar case, Frank G. v. Board of Education of Hyde Park Central School District.

In that case, a different 2nd Circuit panel said the argument that parents first have to enroll their child in a public school places them “in the untenable position of acquiescing to an inappropriate placement in order to seek reimbursement from the public agency that devised the inappropriate placement.”

In its appeal to the Supreme Court, the New York City district argues that the 2nd Circuit court’s ruling conflicts with a 1997 amendment to the IDEA. The district believes the amendment made clear that the statute does not require a district to reimburse parents when the district offers an appropriate placement but the parents voluntarily place the child in a private school.

‘A New Issue’

Allan G. Osborne Jr., a former president of the Education Law Association and the author of several books and papers on special education law, said he was surprised that the Supreme Court chose now to take up a case involving tuition reimbursement when the student had not attended public school first.

“It’s an issue that I think has not been fully litigated by the lower courts,” said Mr. Osborne, who is also the principal of Snug Harbor Community School, a public elementary school in Quincy, Mass.

“This is a new issue because it involves some of the newer amendments to the IDEA,” he said, referring to provisions in the 1997 reauthorization of the law.

“It’s a situation that probably occurs fairly rarely, that you would have a child that has never come to public school,” Mr. Osborne said. “But in some of your bigger city districts, it could come up more often.”

He added, “Even if it doesn’t come up very much, when it does come up its very important, because it’s a lot of money.”

Julie Wright Halbert, the legislative counsel of the Council of the Great City Schools, said the outcome of the case is important to the members of her group.

“There’s no question that the cost and burden is significant,” she said.

See Also

The case adds to a list of three major IDEA cases the high court has accepted over the past two years. Just last week, the justices heard arguments on whether nonlawyer parents can represent their children in federal court in special education cases.

A version of this article appeared in the March 07, 2007 edition of Education Week as ‘Unilateral’ Placements Face Review


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