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Loving Parents Want What's "Best" for Child -
School Only Needs to Provide an "Appropriate Program"
by Pete Wright & Pam Wright

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On April 16, 1998, the U. S. Court of Appeals for the Second Circuit issued a decision in a New York tuition reimbursement case, Walczak v. Florida Union Free School District. The Court found that the program proposed by the public school provided B. W. with a free appropriate education.

B. W. is a child with severe learning disabilities. In addition to learning disabilities, the child had serious social problems. She did not interact with other children and did not have friends. Her parents asked the district to fund her placement at Maplebrook School in Amenia New York. The parents felt that a residential placement was the best way to address her problems. The district developed an IEP that placed her in one of their self-contained classes for developmentally disabled children.

Child's Needs Met in Public School Program

ALL WITNESSES - including both of the parents' expert witnesses -- testified that the child made academic and social progress in the public school program.

The parents' experts did not disagree with any of the academic or social goals in the proposed IEP. One expert testified that the child needed a residential setting to achieve the social goals. The other expert testified that although she favored the residential placement, the child's academic and social needs could be met in the public school program.

Child Not Entitled to the "Best" Education Money Can Buy

The Second Circuit quoted a 1984 decision by (now) Supreme Court Justice Ruth Ginsburg -

" . . . because public resources are not infinite, federal law does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each disabled child."

After charting out the child's achievement test scores, the Court concluded that these test scores were proof that the child made "impressive" and "remarkable" progress in the public school program:

"These objective academic achievements are uncontradicted and certainly not "trivial." In fact, they are impressive when considered in light of the significant social problems that impeded B. W.'s academic progress when she first entered BOCES . . . [the parents experts] each confirmed that the social progress made by B. W. during the years she was enrolled at BOCES was remarkable."

The Second Circuit distinguished their ruling in Walczak from their earlier decision in Mrs. B. v. Milford Bd. of Education, 103 F. 3d 1114. "There, all the evidence indicated that the disabled child's social problems were steadily worsening with adverse consequences on her education."

The Court returned to the issue of academic progress:

"The objective evidence in this case demonstrates that B. W. could make meaningful academic and social progress in a day program . . . the overall picture is plainly one of improvement, not regression.

Parents Seeking to "Maximize" Child's Potential

Quoting a letter from the parents to the school district, the Court held that -

"It appears [that the parents purpose] in seeking a residential placement for B. W. was "to obtain the maximimum interventions" for her "so that she can reach her true potential. (emphasis added)

"While the parents wishes are understandable, IDEA does not require states to develop IEPs that "maximize the potential of handicapped children." Bd. of Educ. v. Rowley, 458 U. S. at 189.

"The inadequacy of an IEP is not established, however, simply because parents show that a child makes greater progress in a single area of a different program."

At the conclusion of their decision, the Court cited testimony of one of the parents' witnesses as "particularly relevant."

"Although she viewed Maplebrook as a superior facility, she stated that the BOCES program for the developmentally disabled was sufficiently structured and supportive to meet B.W.'s academic and social needs."

Four Lessons About FAPE

1. Your child is NOT entitled to the BEST special education.

As a parent, you must eliminate the word "BEST" from your vocabulary when you discuss your children's educational needs. Your child is entitled to an "appropriate education" - NOT the BEST education or an education that geared to "maximize potential." Many courts still define an "appropriate education" as "access to an education" or a "basic floor of educational opportunity" (read Bd. of Educ. v. Rowley to learn why)

2. Parent testimony carries little weight in the eyes of judges.

Loving parents are biased. The parents' testimony about what the child needs will not carry the day.

3. School staff will testify that their program is appropriate 99.9 % of the time.

About 85% of the time, school staff will testify that their program is BEST for the child. (Note: School staff can and do use the word "BEST" - but parents cannot.)

4. Parents must have strong knowledgeable experts in special educaton litigation - and experts must never use the terms "best" or "maximizing potential."

Experts must be willing to advise the IEP team, Hearing Officer, or Judge about the inadequacies of the public school program and the adequacies of parent program.

If the parents' experts testify that the school's IEP and program IS appropriate, parents will not prevail.

The Second Circuit decision in Walzak v. Florida Free Union School District is available in The Law Library. To understand these concepts - FAPE v. maximizing or "best" - read the U. S. Supreme Court decision in Board of Education v. Amy Rowley.

Last revised: 09/08/08

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