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The Special Ed Advocate Newsletter
April 18, 2002


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Alert! Rich Disabled Pupils Go to Private Schools at Public Expense (April 18, 2002)

On April 17 2002, The New York Times published "Rich Disabled Pupils Go to Private Schools at Public Expense."

The article described testimony by Chancellor Harold Levy and Francine Goldstein before the President's Commission on Excellence in Special Education. Unfortunately, their testimony was not accurate.

URL: http://www.nytimes.com/2002/04/17/education/17LEVY.html

The purpose of this Alert is twofold.

1. To set the record straight.
2. To teach you how to find answers to your questions about the law.

As we go through the reauthorization process for IDEA, you are likely to read inaccurate statements from school officials. You need to know how to check these statements for accuracy. In this article, we will walk you through the fact-checking process.

Reimbursement Issues

Mr. Levy testified about reimbursing parents for private services and schools: "In more than half the cases . . . applicants have never sent their children to public schools, nor do they ever intend to."

Ms. Goldstein testified "A disabled child receiving public aid to attend a private school need not have been previously enrolled in a public school."

While these statements elicit emotional reactions, they are not true. One wonders if school officials did not do their "homework" (did not read the law) or if other factors were at work when they testified before the Commission.

To find out what the IDEA statute says about reimbursement, go to Section 1412 in Wrightslaw: Special Education Law (begins on page 42).

Now go to (a)(10)(C)(i) -- (page 44)

A portion of the statute from 20 U. S. C. § 1412(a)(10)(C)(i) is clipped below:

START HERE
(i) In general.--Subject to subparagraph (A), this part does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.

(ii) Reimbursement for private school placement.--If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.
END HERE

As you see, the law states in (i) that a public school is not required to provide reimbursement if the public school made a free appropriate education available to the child. If the child has not "previously received special education" from a school district, the parents are not entitled to reimbursement.

The Supreme Court issued two decisions about reimbursement when public schools fail to educate disabled children: Burlington (1985) and Florence County School District IV v. Shannon Carter (1993).

Both decisions are in the Casebook section of Wrightslaw: Special Education Law Burlington begins on page 323, Carter begins on page 343.

The law is well-settled that the public school must fail to provide an appropriate education before parents are entitled to any reimbursement for private educational services or a private school placement.

Reimbursement was also addressed during Oral Argument in Florence County v. Shannon Carter. The Justices are questioning Mr. Ayer, attorney for Florence County School District IV.

START HERE
QUESTION: Well, let me ask you the question in a different way, and if I -- this is the way I see it, and if I'm wrong please tell me. The school system has not been able to provide the child with an education that the statute requires. That's a given. What is the remedy for the parent?
MR. AYER: In this case? In any cases?

QUESTION: In this case. The school system has not done what the statute requires. The parents then have a child in need of an education. What is the remedy --
MR. AYER: Well --

QUESTION: -- for the default on the part of the public school system?
MR. AYER: The parents have the right to remove the child, as was indicated from -- in Burlington, to remove the child from the public school and find an alternative placement. The issue here --

QUESTION: And that's what these parents did.

- - - -

QUESTION: Once the school district has failed to meet its obligation, the parent has the right, if the parent wants to take the chance, to send the kid to any school at all. If the school doesn't meet up to fulfill the obligation substantially of the act, the parent gets no reimbursement. That's a substantial sanction, but I don't know why the parent has to - -
MR. AYER: Well --

QUESTION: You know, the school board had its chance, decided not to provide these services, and it seems to me it falls back into the lap of the parent.
END HERE

Transcript of Oral Argument in Florence County v. Shannon Carter.

URL: http://www.wrightslaw.com/law/caselaw/Carter_SupCt_Oral_Argument.html

Why did school officials provide incorrect testimony about this issue? Are they ignorant of the law? Did they intend to mislead the Commission?

Financial Drain Claims

About parents of disabled children, Mr. Levy complained: "They have drained resources that are critically needed for the system . . . You cannot give one kid the Cadillac and the others the back of the bus."

Disabled children are not entitled to Cadillacs nor to lemons. They are entitled to a free appropriate education from which they receive educational benefit.

Nine years ago, school districts made the same financial disaster arguments in the media and in amicus briefs filed Shannon Carter's case. In their unanimous decision in Carter, the Supreme Court rejected these "Cadillac" arguments:

"Yet public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State's choice. This is IDEA's mandate, and school officials who conform to it need not worry about reimbursement claims."

Employment & Independent Living

The purpose of the Individuals with Disabilities Act is "to ensure that all children with disabilities have available to them a free appropriate public education . . . designed to meet their unique needs and prepare them for employment and independent living." 20 U. S. C. § 1400(d)(1)(A)

(See page 24 of Wrightslaw: Special Education Law)

Does Mr. Levy claim it is unreasonable to require schools to teach disabled children the skills they need for employment and independent living?

If Mr. Levy had a child or grandchild with special education needs, would he leave his child in a failing school? We doubt it.

Shannon Carter's parents withdrew her from a public school that failed to teach her to read, write, spell and do arithmetic. They placed Shannon in a private school that taught her the skills she needs for employment and independent living.

Today, we are dealing with the same issues - public schools that fail to teach basic reading, writing, spelling, and arithmetic skills to children with disabilities.

Should parents listen to educators, assume that the child cannot learn, and give up? No. Parents will mortgage their homes, cash in their retirement, and get loans so they can place their children in schools where children learn the basic skills needed for "employment and independent living."

Writing Books & Teaching Skillls to Lawyers and Parents

These school officials claim "The Carter case created a proliferation of lawsuits filed by parents requesting tuition reimbursement, and a cottage industry of lawyers specializing in these cases."

"The Carters' lawyer, Peter Wright, has consulted in thousands of cases, toured the country and published books on special education law, teaching his skills to lawyers and parents alike."

We plead guilty to "publishing books about special education law." We published Wrightslaw: Special Education Law so ordinary people could get answers to their questions in the laws and regulations - and check the facts. We published Wrightslaw: From Emotions to Advocacy to teach parents how to negotiate with school officials who may not always tell the truth.

We are also guilty of "teaching skills to lawyers and parents." At advocacy training programs and Boot Camps, we teach parents how the law is organized and how they can find answers to their frequently asked questions. What a thought!

What about school officials' complaints about the "proliferation of lawsuits filed by parents."

According to the National Council on Disability, an independent agency that advises Congress and the President on disability policy, school districts are using tax dollars to fund "expensive and time-consuming litigation" AGAINST parents:

"Even parents with significant resources are hard-pressed to prevail over local education agencies when these agencies and/or their publicly financed attorneys choose to be recalcitrant." ("Back to School on Civil Rights," published in 2000 by the National Council on Disability)

http://www.ncd.gov/newsroom/publications/backtoschool_1.html

Real Question to Be Asked and Answered

The question we must answer is this: Should we prepare our children, including children with disabilities, for employment and independent living?

If our answer is "yes," we must require our public schools to teach basic reading, writing, arithmetic and spelling skills. We must not force children to remain in schools that fail to teach.


How Shannon Carter Changed Special Education

In fairness, we must tell you that The New York Times does not always publish negative articles about children with disabilities and their parents.

iOn January 5, 2002, The New York Times ran an article about Shannon, "How Clip 'N Snip's Owner Changed Special Education" by Brent Staples.

Mr. Staples spent time learning about Shannon, her family, her struggles. He identified serious problems with the way reading is taught.

"The people of Florence, SC know Shannon Carter as the owner of Shannon's Clip 'N Snip, a barber shop where the locals get haircuts and conversation . . ."

"Shannon's public school teachers are no doubt surprised to see her running a business and working out a financial plan. During the 1980's she finished ninth grade failing virtually every subject, and was nearly illiterate."

"The schools told Emory and Elaine Carter that their daughter was terminally lazy and would 'never see a day of college'. In truth, Shannon was suffering from a common but undiagnosed learning disability that made it difficult for her to comprehend the little that she could read. Alienated and depressed, Shannon became suicidal."

URL:http://www.wrightslaw.com/advoc/nwltr/2002/al.0107.htm


Links

To read "Rich Disabled Pupils Go to Private Schools at Public Expense" go to

http://www.nytimes.com/2002/04/17/education/17LEVY.html

NOTE! Before you can download articles from The New York Times site, you must register and get a password! This service is free.

To read about Shannon's case, including all decisions, the transcript of oral argument and Pete's analysis of the case, go to:

http://www.wrightslaw.com/law/caselaw/carter.links.htm

To learn about Wrightslaw: Special Education Law, go to

http://www.wrightslaw.com/bks/lawbk/spedlaw.htm

Reviews: http://www.wrightslaw.com/bks/lawbk/reviews.htm

Table of Contents: http://www.wrightslaw.com/bks/lawbk/toc.pdf

Index: http://www.wrightslaw.com/bks/lawbk/index.pdf


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