Monday, June 22, 2009

Supreme court rules...

Supreme court rules 6 to 3 for parents in special education case see blog tomorrow. listen

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6 comments:

  1. lawstudentJune 23, 2009 at 9:44 AM

    edweek has a good article on this http://www.edweek.org/ew/articles/2009/06/22/36scotusspecialed.h28.html?tkn=WYWFsKmbSaxctfTEay8oeZ3tiYO7xc6omnYY

    I understand this is a huge win for many parents and students, but I can't help but wonder, like the dissenters, if this is really what congress intended in enacting the IDEA. The majority, citing the IDEA, says that reimbursement for private placement is appropriate where the district has failed to provide FAPE. However, how can they have failed to provide FAPE if the child never received special education services at the public school? Maybe I just don't know enough about these things, but it seems like before ordering the district to pay for the private placement they should first be given the chance to provide the kid FAPE in the public schools.

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  2. JPSJune 23, 2009 at 12:21 PM

    I think some of the media coverage of this case creates the wrong impression that the issue is whether parents can bypass public schools entirely, and put their children directly into private school at public expense.

    The Court made it clear that in order to obtain reimbursement, parents continue to have the burden of showing both that the public school did not make an appropriate education available, and that the private school was appropriate. (see p. 16 of the slip opinion). So while this decision means that parents who don't give the district a chance to provide services are not categorically barred from claiming reimbursement, it seems to me that they would have a very hard time showing that the school didn't offer a FAPE.

    In this case, the district was asked to provide special education, but refused to do so, based on its conclusion that the student in question was not eligible. As the Court noted, a complete denial of services is at least as bad as the provision of inadequate services.

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  3. lawstudentJune 24, 2009 at 10:25 AM

    Sure, but once the hearing officer had ordered that the student did in fact qualify for special education and was entitled to FAPE, at that point shouldn't the district have been given the chance to provide FAPE? There is no reason to think that the school could not provide the student FAPE if given the chance, unless I am missing something here.

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  4. JPSJune 24, 2009 at 1:51 PM

    In this case, the parents filed for due process in April 2003, the district continued to deny that T.A. was eligible for special ed after a re-evaluation, and the hearing officer issued a decision in January 2004 finding that T.A. was(and had been) eligible, that by not identifying him the district had failed to meet its child-find duty, and that the parents must be reimbursed for the tuition of the private school where they had placed him in the interim.

    What happened after the hearing officer's decision is not what's at issue, its who is responsible for the cost of the appropriate education provided in the private school prior to the decision, during which time the District did not offer a public special education placement for T.A.

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  5. Jim GerlJune 25, 2009 at 10:38 AM

    Thanks JPS and law student,

    This is a good debate. I think that the first prong of Burlington really means a violation of IDEA, of which a denial of FAPE is one of four. Like other terms in the law we use "FAPE" to mean different things and that is always dangerous.

    Thanks for your input.

    Jim

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  6. lawstudentJune 26, 2009 at 11:12 AM

    JPS and Jim, thanks this makes a lot more sense. As I understand it now then the court isn't saying that the district is responsible for paying for the private placement after the HO's decision and into the future, but only during the interim period up to the HO's decision, because T.A. was eligible for special ed that entire time and the district had denied him FAPE. It is confusing that FAPE has different meanings, but I think I get it now and am more comfortable with this decision. Thanks.

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