Sunday, December 2, 2007

Misunderstanding Tom F. - Who Pays for Special Ed for Private School Students

There seems to be a lot of misunderstanding about the meaning of the recent Tom F. decision by the U.S. Supreme Court. I have talked to a lot of people who feel that the Second Circuit decision, which was affirmed by default, for the Second Circuit only, by the tie vote by the Supremes, requires public school districts to reimburse tuition for many or all private school students. These folks are overlooking one important factor; before tuition may be reimbursed, the parent/student must prove a denial of FAPE. In other words, the school district must either prevent the parents from meaningful participation in the process or else write an IEP that is reasonably calculated to confer no more than trivial educational benefit to the child.

Where a child is denied FAPE, the parents must choose between keeping the child in the public school and seeking remedies such as compensatory education and withdrawing the student and placing him in a private school while seeking reimbursement as the primary remedy. Tom F, and Frank G were rare cases in which the student was never actually enrolled in public school. In both cases, however, the parents requested that the district prepare an IEP and in both cases, hearing officers and state review officers found a denial of FAPE. Frank G and Diane G ex rel Anthony G v. Bd of Educ of Hyde Park 459 F.3d 356, 46 IDELR 33 (2d Cir. 2006); Bd ofEduc of the City School District of New York v. Tom F ex rel Gilbert F 42 IDELR 171 (SD NY 2005). This is an important precondition to reimbursement

I believe that the reaction to Tom F is at least partly colored by the attitude of the federal government lately which seems to many to be that the public schools are the pollution and that private schools are the solution. Given that attitude of Congress, as evidenced by both NCLB and the 2004 reauthorization, and that attitude of OSEP, as reflected in the 2006 regulations, it is easy to understand why public school officials view the decision by the high court as somewhat sinister.

Nonetheless, a parent/student must show a denial of FAPE before reimbursement may be awarded. If hearing officers are awarding reimbursement without first requiring a denial of FAPE, states should provide better training and be more selective when hiring hearing officers. (I admit to a bias here- I train hearing officers and consult about due process hearing systems.) If courts are doing this, districts should discuss possible appeals with their legal counsel.

I hope that this post helps explain this issue. For now, let's all take a deep breath and hope for more clarity from the Court in the future.

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