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October 11, 2007
Bellyaching, blogs and BoardBuzzSpecialEdLaw Blog is all (dare we say?) abuzz about yesterday’s Supreme Court indecision, er, decision, in a special education case, and even more abuzz about our posting yesterday. SpecialEdLaw Blog (SELBlog) predicts BoardBuzz’s “already loud” “bellyaching” is sure to grow even louder. Hmmmm. We beg to differ. Maybe “buzzing” would be a better word.
SELBlog disputes BoardBuzz’s rationale, claiming our view of Congressional intent is not quite as clear as it should be because lower court judges (applying 2nd circuit precedent by the way; meaning: how else could they rule?) saw the law differently. Just because courts disagree doesn’t mean the law isn’t clear. That’s certainly the case in appellate courts and courts of limited jurisdiction like the Supreme Court. And, when it comes to doing the math, BoardBuzz thinks what really matters is how 5 of 9 vote instead of how many votes were had on the bus, in the hallway, on live dancing shows, or on the way to the courthouse steps in Washington.
And, while we’re talking about what really counts, it is this: the Individuals with Disabilities in Education Act is about collaboration NOT unilateralism. If that were the case, the Supremes would not have ruled repeatedly that Congress intended for parents to work with school districts to achieve appropriate educational results for students. SELBlog says that “most parents do not opt out and unilaterally place, until that they have first opted in.”
We agree. Most parents of students with special needs are happy with the services their public schools offer their children. But that’s not the point. Those parents who unilaterally choose private placement when they have never given the public school a chance to work with their kids were never interested in being part of public system to begin with (as Justice Scalia suggested). Well, except to collect public money for private schooling.
And, ahem, here’s a bit of math for ya: the average cost of a student in special education is $33,000 a year in New York City. So, yes, SELBlog, it’s not likely a big district like NYC will close its doors any time soon, but don’t forget there are many, many small and mid–sized school districts across the 2nd Circuit (many of them single-school districts) that could face serious budget challenges from even one unilateral placement ala Tom F.
So, it ain’t bellyaching. It’s truth. And, that means with the feds providing only 17 percent of the 40 percent of funding they promised for their share of special education, the burden falls to the local taxpayer.
This is not about the “weak party” nor about playing on “the school’s home turf” as SELBlog suggests. It’s about doing what’s right for students. All students. And, the sad reality is that placing greater financial demands on schools without commensurate federal funding hurts all students.
BoardBuzz knows parents like Tom F. may be well-intentioned. But, striking out on their own out of a misguided belief that private is better (especially without having given the public schools a chance) can have a serious impact on the ability of public schools to educate all children. So, to take a phrase for the horse’s, er, SELBlog’s mouth, “Let's keep this whole thing in some perspective.”
And, while we’re at it, SELBlog, our legal analysis is just fine, thank you. You may disagree with it. But, if disagreement were the standard for determining unprofessionalism, well, what would you be saying about the Supreme Court given its decisions in special education cases beginning with Rowley? So, make your point. And play nice. Or guess who’s the real bellyacher?
Posted October 11, 2007 2:00 PM | School Boards | School Law | Special Education | Students
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Comments(1)
Posted by: jerry tanenbaum on October 19, 2007 5:26 PM
Your analysis misses the point that parents who unilaterally place their kids cannot recover reimbursement unless they prove that they DID in fact "work with" the District and DID give the District every opportunity to provide a reasonable program for their child, and that the District failed nevertheless to do so.
One cannot recover reimbursement unless you prove that you told the District in advance that the program they had was not appropriate and gave them an additional chance to provide something better; that the program offered was below minimum acceptable standards; that the program chosen by the parent is appropriate; and that there in no equatable reason to deny or reduce reimbursement -- such as a parent failing to give the District a fair opportunity.
That's the law and it more than adequately protects school districts against any claims by any persons who do not work fairly with the schools.
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