Special-ed parents win in court

Parents of disabled students can seek reimbursement for private school tuition, even if their child didn’t receive special education services in public school, the U.S. Supreme Court ruled this week. The case involved an Oregon high school students in the Forest Grove district who was diagnosed as learning disabled only after he enrolled in private school.

If the public school can’t provide an appropriate education to a disabled students, parents have the right to seek a private placement at public expense. “Nationally, about 90,000 special-education students are in private schools, most of them referred by their public schools,” reports the New York Times.

Justice John Paul Stevens wrote the opinion for the 6-3 majority.

“It would be strange for the act to provide a remedy, as all agree it does, where a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether,” he wrote.

Why not extend choice to all parents, asks Jay P. Greene. “Why should any child, disabled or not, be made to wait for an appropriate education?”

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Comments

  1. But the public school COULD have provided an appropriate education to that child, but they were never given a chance. After the diagnosis, the parents sent their kid to a private school and wanted the school district to pay for it. The school district insisted that they weren’t going to pay for it until they (the district) were given the opportunity to provide the appropriate education.

    I haven’t read the case to see why the Supremes ruled as they did (they rule on the law and not on the facts), but this situation just does not seem right to me. Before the taxpayers have to cough up the money for a private education, the district should have to be given a chance to provide the education.

  2. Mom of Three says:

    Rex,

    The school would not provide FAPE because it kept insisting that the boy’s ADHD wasn’t severe enough to constitute a learning disability and entitle him to an IEP. The parents tried to deal with the school for years as the boy fell further and further behind. He was placed in private school in his junior year of high school. He didn’t get special ed services because the school district didn’t regard him as disabled enough, not because the parents didn’t ask.

    Please read the case. The majority was quite aware of the facts and the law and worried that any other finding would give students legal rights to the private option where school districts offer insufficient special ed services but not when they refuse to provide special ed services at all despite documented severe learning issues.

    The court recognized that the legal system is too cumbersome and lengthy to be an effective remedy for kids needing special ed services. A Supreme Court decision that gave school districts an incentive to simply deny a learning disability exists at all would be even more “unfair” and make it less likely that school districts and parents will cooperate as the IDEA contemplates.

  3. Redkudu says:

    “But the public school COULD have provided an appropriate education to that child, but they were never given a chance.”

    The district, it seems, was given the opportunity. The article says “Although Forest Grove officials had noticed T. A.’s difficulties and evaluated him for learning disabilities, he was found ineligible for special-education services.” They declined to find him eligible or to provide services. It was after *that* diagnosis that the parents removed him.

  4. Margo/Mom says:

    Red is right. This impacts a fairly narrow set of circumstances in which the district essentially turned a blind eye to the kid, leaving the parents no within-district option to receive services.

  5. ‘Why not extend choice to all parents, asks Jay P. Greene. “Why should any child, disabled or not, be made to wait for an appropriate education?”’

    So…why not, indeed?

    The private schools in my area are expensive, but not nearly as much per year as they spend in tax dollars supporting the public schools. They’re in the process of closing some schools anyway – the ones with the lowest attendance, which also seem to have the highest test scores. Not sure where they’re going to put all those kids.

  6. Therese says:

    The school district were given many chances and spent months delaying meetings and denying proper placement for this child – the mother luckily kept very good notes about each meeting. School districts often use this technique of wearing down the parents of children that need expensive education hoping that they will just go away. In a friend’s case, she couldn’t believe it when teachers actually lied about her child. It wore her down and cost her thousands of dollars to hire a lawyer.

    In this case -
    1. The KCMSD ignored the Children’s Mercy Hospital recommendations. They continued to use the same speech goals and program that have been unsuccessful in teaching my child to speak for three years.

    2. After nearly four months, my son continues to be placed in the interim 30-day placement at Paige Elementary, despite the District’s admission that this school is not appropriate for him.

    3. In October, I realized that I could no longer jeopardize my son’s life by negotiating in good faith with the KCMSD. I filed child complaint charges with the Department of Elementary and Secondary Education Special Education. The district hired an attorney to fight me. The district has continued its pattern of stalling by having this attorney file for an extension to answer the charges. A decision was due this month. Because of these legal tactics, the decision will be delayed for at least another month.

  7. Okay, as someone who deals with this on a daily basis, let me tell you a few things that are missing:

    1. There is a large difference between what private professionals and public officials will diagnose as a “learning disability.” Generally, the bar is much higher in the public school sector.

    2. No diagnosis, no payment. That mantra is set in stone for many practitioners in private practice. I have seen outrageous diagnosis that I feel are exploitative of parents.

    3. All previous cases in federal courts had allowed the school districts to try remediation first, then move to private placement. This did not happen in this case. It really does re-write the intent of the law.

    4. ADHD is a very subjective diagnosis. I would be interested in how he was diagnosed since it does not appear that the private practitioners did any in-class observations. (Yes, I realize that there are rating scales that parents and teachers fill out, but I didn’t see anything to suggest that the private practitioners used these scales.)

    5. I know the brief said that the school overlooked several aspects of ADHD, but I would be curious to know exactly what was overlooked.

    6. In generic terms, the school is supposed to provide “Chevrolets” not “Mercedes” as the model for education goals.

    7. One of the reasons that schools are reluctant to place struggling children in special education is the dismal future. Typically, a special education student is closed off from all competitive colleges, most 4 year colleges and even will require waivers for military service.

    8. Now, in Texas, ADHD is a medical diagnosis. It comes from a physician. So unless a doctor is willing to stipulate a severe form of ADHD, they are not eligible. (Yes, I know the case is not from Texas, I just offer it as contrast.)

    There is probably a PH.D. thesis in this decision, perhaps the circumstances are unique enough that the case will not be replicated, but only time will tell.

  8. Mom of Three says:

    The parents put him in a $5000 a month residential learning program in his junior year of high school to try to remediate all the learning that was missing.

    They paid legal expenses for years hoping for reimbursement because of the facts of the case.

    You don’t do all that because it’s an arguable case of ADHD. Apparently the ADHD had prevented the boy from having the foundational reading, writing, and math skills he needed to function well as an adult. This lack became apparent in high school courses.

    This is not an ambiguous case where parents bought a special ed classification and then sought reimbursement for a Mercedes education.

    I think the case facts indicate the parents moved him to private school to try to obtain at least a Yugo education from the K-12 process. There’s a desperation and adamance in this fight that suggests that no one ever offered them the choice of the Chevrolet.

  9. Bill Leonard says:

    Still a nasty question, but: Why should the public pay for every kid’s disabillty, or presumed disability (which might not exist absent a federal payment for the “disability”?)

    Sorry, people, but at some point the state should not presume to pay for every fallen sparrow. When the state tries to do so, then we find there are an inordinate number of fallen sparrows.

    Bill

  10. This is a shameful decision from the SC, the body that has done more than its share to ruin public education (think the Tinker case). This decision will only do more to add to the demise of what was once a wonderful public school system.

  11. Mom of Three says:

    Why specifically is this a shameful decision?

    What specifically will this do to ruin the public school system?

    You seem concerned that the availability of private funding in egregious situations will take away resources and thus undermine the public school system.

    What if the desire to avoid paying for expensive private remediation forces the public schools to provide better instruction for all students?

    The recently released RtI practice guides in reading and mathematics make it clear that many specified learning disabilities are believed to be a result of poor instruction in reading and math.

    What if this decision becomes the impetus for explicit instruction in reading and math instead of an inquiry teach it to yourself technique through repeated exposure? How would millions of kids becoming stronger readers and proficient in math hurt public schools?

    I agree taxpayers cannot provide a Mercedes education for everyone and cure every slight. For the SC to have ruled differently under these facts would have left many students with no recourse if a school district simply said no disability.

    Public schools are more likely to worsen from the perspective of the student if there is no recourse for poor instruction than if there’s a fallback to a private option in certain situations.

  12. Margo/Mom says:

    “Sorry, people, but at some point the state should not presume to pay for every fallen sparrow.”

    Bill–better to have the streets filled with “fallen sparrows,” right? Better to be tripping over unemployed illiterates than enable them to work, right?

    I have at times had the opportunity to interview and hire people for positions. It is impressive the number of “fallen sparrows,” that are now considered to be recoverable, who before were left to be “a burden” on either their family or society. I recall particularly a former truck driver who was severly disabled in an accident. She had been retrained to provide clerical (data input) support using voice-activated software.

    Last night I was watching the review of Michael Jackson’s life. The comment by one of the brothers in an interview at a young age concerned whether Michael had always been the star. The response was that, of course, he was their “front,” their lead singer. They put him out front because he had so much energy. I had to think–if he had spent most of his days in regular school instead of performing, he might have been diagnosed as ADHD–just another fallen sparrow.

  13. Tracy W says:

    Still a nasty question, but: Why should the public pay for every kid’s disabillty, or presumed disability (which might not exist absent a federal payment for the “disability”?)

    I think it’s not paying for the disability, it’s paying for an education.
    What is weird is that schools are obliged to provide an actual education to disabled children, but not to children without disabilities.

  14. I want to see the people who complain about the cost chime in on this one. Do you think $5,000/month for one child is a reasonable cost for you to bear as a taxpayer? Keep in mind there are plenty of kids in the public schools who do cost this much. Do we want to send them to specialized private schools at taxpayer expense that may be better suited to serve them, and what does that say about the IDEA trend toward inclusion-at-all-costs? I see lots and lots of interesting implications here.

    FWIW, I do wonder about the whole story. ADHD doesn’t usually trigger an IEP.

  15. I want to see the people who complain about the cost chime in on this one. Do you think $5,000/month for one child is a reasonable cost for you to bear as a taxpayer? Keep in mind there are plenty of kids in the public schools who do cost this much. Do we want to send them to specialized private schools at taxpayer expense that may be better suited to serve them, and what does that say about the IDEA trend toward inclusion-at-all-costs? I see lots and lots of interesting implications here.

    FWIW, I do wonder about the whole story. ADHD doesn’t usually trigger an IEP.

  16. Mark Roulo says:

    I want to see the people who complain about the cost chime in on this one. Do you think $5,000/month for one child is a reasonable cost for you to bear as a taxpayer?

    Probably not for every child. For one-and-only-one child it just doesn’t matter. Kinda like spending $1M on medical care for one person doesn’t matter, but we can’t do this for everyone.

    California has about 4.8 million K-12 students. Currently, California spends about $10K/year per student (probably dropping a bit due to the current budget crunch). This works out to a bit under $50B/year for the state, and this consumes about 40% of the state budget.

    Going to $5K/month for a 10 month school year gets us to $50K/year for that student. So this one student is consuming the education budget of 5 average students.

    If the state spends this amount on all the students, we wind up with a state education budget of about $250B/year, which is approximately 2 times the current state *total* budget. Current California voting on tax increases suggests that the California taxpayers are very much opposed to any non-trivial increase in state taxes, so doubling the state peak income tax to ~20% and pushing the average state sales tax to ~16% (which would, maybe, allow us to double the state tax collection) is pretty much out of the question.

    I think the big question is: How common is this sort of thing? And how common will it be in the future?

    The trick here is that the $50K/year for this kid doesn’t come out of thin air. The money gets diverted from some other use, in this case probably the education budget for the district. Two kids like this in one district means that the district loses one teacher (more or less). Four kids mean that the district loses two teachers. Etc. At some point, educating these kids negatively impacts the education of the remaining kids in the district (because the resource loss starts to matter).

    So, how many of these kids do we have? A few hundred in a large state probably don’t matter. Tens of thousands will.

    -Mark Roulo

  17. Margo/Mom says:

    LS–It’s not the specific diagnosis that triggers the IEP, it’s the impact on the ability to learn without specialized services of some kind. There was at some point a clarificatio from the feds that ADHD did in fact constitute a learning disability (even though it had not specifically been named within the legislation). Prior to that, one option was to lump it in under Other Health Impairment, based on the degree to which it was impacting the ability to learn.

    But, in my experience, there’s a lot of mythology and uninformed opinion floating around the average school with regard to IDEA. At points I have been told that my son could not participate in things such as “interventions,” legally mandated for students who either did not pass, or were at risk of not passing state assessments because of his identification. This was considered to be “double dipping.” Neither that wording, nor that concept, derives from the law–but belief in it was widespread and remained so until the first year that the district was held accountable for AYP for kids with disabilities.

    I believe that there are still teachers and principals in my district who believe that regular education teachers cannot be compelled to teach students with disabilities. While that may be true as a practical matter (as in, you can put the kid in the class, but you cannot make the teacher teach them), it is not a legally, or contractually protected right, as many seem to believe.

    An additional myth is the belief that IDEA requires “inclusion at all costs.” The word inclusion is not contained in the law. What the law does specify is a right to a free and appropriate public education (FAPE) in the least restrictive environment(LRE). Both FAPE and LRE are open to interpretion, in each individual case, and districts demonstrate wide latitude in interpretation. My district still resists inclusion as a concept. The moved years ago to rename the “special ed” rooms “resource rooms,” which would imply that they are somethign of an adjunct (resource) to the regular classroom. They are not. At high school level there are special education teachers purporting now to teach subjects like “biology” and “algebra” to students with special needs. Many have been teaching low level science and practical math for years. Because the LRE is supposed to be determined by the “services” that a student needs and where they can best be delivered, the district blankets in “smaller classroom size” as a needed service. The kids who are “included” are pretty much “disabled” in name only–that is, they receive no, or very little in the way of services in the regular classroom.

    My suspicion is that in this particular case, the student’s needs could have been addressed far better and at lower cost had the district been willing to provide services much earlier. There are some cases in which it is more effective and efficient for the district to purchase services in the form of a private education. I think that this is frequently true with extreme autism, where the districts have just lacked the resources to develop adequate programs for a fairly small segment of the population. I would also say that most districts would be happy, in a heartbeat, to contract out the eduction of many emotionally disabled students, just to get them away.

  18. I’m afraid this is the end of public education in America. It’s a true tragedy of the commons. If every child with ADHD, or every teenaged drug user, qualifies for a $50,000 private education, at public expense, the system will collapse.

    Our district is already cutting the budget for regular education, to support special ed costs. Our district practices inclusion to an unusual degree, so greater inclusion will not salvage the public education system. This spring, the school board decided to cut teachers, and AP sections, rather than try to convince the voters to agree to a property tax increase.

    Private schools will benefit from this ruling, not only the schools which enroll students with learning disabilities. All private schools will benefit as the public schools cut services, as it will drive students out of the system.

  19. Margo/Mom says:

    Parent2:

    The ruling affects only a narrow slice of students with disabilities, certainly not “every child with ADHD or every teenaged drug user.” The conditions under which a student with a disability may receive public funding for private education have been clear for some time–essentially based on the inability of the public district to meet their need. Previous court decisions have established that the law did not imply that in every case the student had to fail to be adequately served within the public system first, that other criteria than wallowing through inadequate services could apply. In other words, the school system doesn’t get to try to teach a blind kid to read text before determining that they should be taught braille, and sent to an appropriately equipped entity to do so, if the school has none.

    What this case established was that in a narrowly defined set of circumstances–that is, where the district had refused to provide services at all–parents could be reimbursed for the cost of private education, after establishing through the courts that their student had need and that the district had failed to meet that need. I would love to believe that this ruling has wide-ranging impact, because I believe that schools have an obligation to teach every child, and to do so with quality. But, I see the reality of too many kids written off too easily. I am glad for the precedent that was set here–but the reality is that it isn’t likely to affect most of us. Only those families in a very limited set of circumstances, who also have the resources to front the money and go through a risky due process for reimbursement.

  20. About 25% of our district is identified LD/ED. There’s a large range of students in that 25% — from mild language disorders to Down Syndrome. Still, based on what I see in my classroom, it is more than two or four students with that potential price tag. I’ve certainly taught some ADHD kids who get almost nothing accomplished except keeping all around them from accomplishing anything.

    Margo, I know the law surrounding the IDEA. Note that I didn’t say anything about the law mandating inclusion — inclusion-at-all-costs is a trend, nonetheless. Some of the trend derives from parents wanting their kids in the typical classroom, and some probably derives from districts trying to cut costs and “resource rooms.” Yes, lots and lots of weaknesses in the current system — I agree and deal with them in my classroom — I’ve been through several service delivery models. Before I took over the AP program, I typically had 1/3 to 1/2 of my students covered under an IEP or 504 (I still have quite a few in my reg classes, but very few in AP, so sheer numbers have dropped.) I haven’t seen an IEP for ADHD since they dropped the funky OHI approach.

    The idea behind an IEP is to address the individual needs of each individual; unfortunately, it is nearly impossible to do that well, by definition, in a large beaurocracy with lots of competeting interests.

  21. Mom of Three says:

    I believe public education is more at risk if school officials have unfettered discretion to determine who has a learning disability and what it an appropriate education.

    In too many school districts parents are told erroneously that no one knows what type of instruction works best to teach reading or math or that there are no textbooks that provide the necessary examples and explanations. Such statements contradict the Department of Ed’s own documents. Beyond a certain point inadequate instruction can produce learning disabilities in some kids. Taxpayers paid well in many cases for what turned out to be a bad deal for everyone.

    To go back to the analogy above, some of these fallen sparrows were pushed. Very few learning disabilities are so severe that they must be dealt with in a residential program. For everyone’s sake though it needs to be an option in extreme situations. The mere threat of the crushing expense in an individual case may be the incentive some districts need to everything they can to remediate for most all students.