Court says public must pay for private special ed

“Life is a process of becoming, a combination of states we have to go through. Where people fail is that they wish to elect a state and remain in it. This is a kind of death.”

- Anais Nin

Allen Vaught said of SB 1000, no way lady, that’s a voucher. No way am I going to support something that would reiterate existing federal disability law at the state level. No way am I going to support something that says if your crappy neighborhood school cannot or will not provide FAPE to your child with autism they must fund that child’s FAPE in a private setting. Vaught was perfectly aware of the major regression our son faced after only 3 months trapped in an inappropriate classroom. Our son and our family have been through a lot in his short life, and that is one huge nightmare we should never have been put through. Like thousands of others, we were stuck with a suffering child and a school that was daring us to sue.

From the Supreme Court:

Associated Press Writer Jesse J. Holland,

WASHINGTON – The Supreme Court has ruled that parents of special education students who opt for private school instead of trying the public system cannot be barred from seeking public reimbursement for their tuition costs.

The court ruled 6-3 Monday in favor of a teenage boy from Oregon whose parents sought to force their local public school district to pay the $5,200 a month it cost to send their son to a private school.

Federal law calls for school districts to reimburse students or their families for education costs when public schools do not have services that address or fulfill the students’ needs. Under the Individuals with Disabilities Education Act, the nation’s special education students are entitled to a “free and appropriate public education.”

Schools have argued that the law says parents of special education students must give public special education programs a chance before seeking reimbursement for private school tuition.

But advocacy groups and parents of some special education students contend that forcing them to try public schools first could force children, especially poor ones, to spend time in an undesirable situation before getting the help they need.

Justice John Paul Stevens said in his majority opinion that the federal Individuals with Disabilities Education Act requires a school district to pay for private special ed services if the public school doesn’t have appropriate services.

“We conclude that IDEA authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school,” Stevens said.

In the case before the Supreme Court, the family of a teenage Oregon boy diagnosed with attention deficit hyperactivity disorder — who was identified only as T.A. — sued the school district, saying the school did not properly address the student’s learning problems. The family is seeking reimbursement for the student’s tuition, which cost $5,200 a month. The family paid a total of $65,000 in private tuition.

In its appeal, the Forest Grove School District said students should be forced to at least give public special education programs a try before seeking reimbursement for private tuition. If not, parents would bypass public schools and go directly to private school — and then ask for reimbursement from school systems already burdened by ever-increasing costs.

The court’s decision does not require reimbursement, but Stevens said school officials “must consider all relevant factors, including the notice provided by parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private school education is warranted.”
Justice David Souter, Antonin Scalia and Clarence Thomas dissented.

“Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools,” Souter said in the dissent.

This is the court’s second attempt at resolving this issue. The high court split 4-4 on a similar case fromNew York City two years ago. Justice Anthony Kennedy recused himself in the New York case but was among those who ruled on the Oregon case.

Nationwide, the number of special education students placed in private schools at public expense has not changed significantly over the last two decades, Justice Department lawyers said, citing statistics from the U.S. Department of Education. Just under 67,000 pupils were in private placements in 2007 — just 1.1 percent of the country’s nearly 6 million special education students.

The case is Forest Grove School District v. T.A., 08-305.

And there you have it.

Click here to read a Wright’s Law analysis of the Supreme Court’s decision.

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I am editing this post to add my own opinion since my phone is ringing off the hook, and my email is full of “Hooray” messages.

This ruling was a decision on a disability law that has been in existence since the 70s. Here’s what this decision does:

1. It gives publicity to the fact that children with disabilities should not have to suffer and be punished with an inappropriate educational environment. People who have not walked a mile are now wiggling their necks and saying why shouldn’t *those* kids have to at least try public school. The answer to that, of course, is FAPE, but that is complicated for the world at large to understand, and the press has not bothered with an explanation.

2. This decision reinforces the fact that you must sue your way to the U.S. Supreme Court to receive FAPE.

[An Ohio family had to go all the way to the U.S. Supreme Court just to get the right to sue their school district without hiring an attorney (which they could not afford after all those school taxes and the massive expense involved in raising a child with a disability). ]

3. In Texas this means in order to receive FAPE you must sue and appeal and appeal and appeal. To get to the U.S. Supreme Court you must make it past the 5th Circuit in New Orleans. Look up the decisions coming out of that court, and best of luck to you. This court is hopelessly biased toward schools and their private attorneys.

If you win in Texas, this is no cause for celebration. You will get your appeals papers in the mail. The private law firms like Bracewell & Giuliani (yes, that Republican Giuliani’s firm) and Jim Walsh’s WABAGS that the schools hire with our education dollars will appeal. The private law firms know that sooner or later you will be in the 5th Circuit, and that’s the end of the line.

[The Individuals with Disabilities Education Act puts the burden of proof for FAPE on the schools, but it allows states to tighten that and put it on the parents. Most states have not done this, but Texas has.]

Someone on here asked me to do even more of Allen Vaught’s job for him than I already have. Someone in comments asked me to stop whining and give him some ready-made bills to file.

Here’s one, boys: Switch the burden of proof for FAPE back to the schools.

I am not an attorney or living off the backs of tax payers, but I would be happy to write the bill for you, too, Representative Vaught. Then you will have something substantial to wave around during your next campaign on proactive solutions for neighborhood schools.