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The October 18th Jurist has a post from lawyer Gary Mayerson about the recent Supreme Court decision, in which it was ruled that New York City schools must reimburse former Viacom executive Tom Freston for private special education for his son, who has learning disabilities. The Supreme Court voted 4-4, with Justice Anthony Kennedy not participating, upholding a lower court ruling that sided with Freston. Mayerson details the ramifications of the decision for families with autistic children:
In my view, the legal impact of the 4-4 decision is that the Circuit courts will now have to address and wrestle with the practical implications of ever adopting a rigid rule requiring parents to “try out” a demonstrably inappropriate IEP as the price of admission to the courthouse door. In New York City, many parents are forced to sue for relief because they don’t even get an IEP from the school system–even after attending an IEP meeting. What, if anything, is there to “try” when nothing is offered? [my emphasis] In other instances, a child diagnosed with an autism spectrum disorder will receive an IEP recommending a grossly inappropriate placement in a school for the emotionally disturbed. Or, a child who is succeeding with support in an inclusion or mainstream classroom with typically developing children will receive an IEP recommending placement in a far more restrictive, self-contained classroom. Does a parent have to agree to violate the “least restrictive environment” sections of IDEIA to ostensibly comply with other, less than clear procedural requirements in the same statute?
Mayerson’s comments get to a key concern of mine: Why should a parent have to place (“try out”) a child in a placement where every indicator suggests that the child will fail—-an obviously inappropriate placement—just to prove a point to the school district?
An unsuccessful experience in school can have a lasting effect on a child, as I know from what happened to my son when he was 7-9 years old. My son’s school situation became so difficult—he had constant instances of “challenging” behaviors (head-banging, aggression) along with bathroom accidents and no progress on his academic work. It became hard to drop him off to the aides and teacher, with the knowledge that I would get a call from the school nurse about Charlie “bumping” his head. We took Charlie out of school for several weeks in the fall of 2005 and homeschooled him; after the first week—when he was clearly relieved not to be at school—-Charlie started to get worried. But school was no longer safe for him and we kept him home until we secured a placement for him in a private school (after seeing him get rejected from a different private school, on the grounds that his behaviors were too severe). When Charlie at last went back, he was more than insistent on the bus showing up and on going to school, and came to dislike weekends and holidays when he was home, and this has been the case ever since: Charlie still worries plenty about not being able to go to school.
Mayerson continues:
The 4-4 decision undoubtedly will spark additional discussion and debate. There are other “Tom F.” type situations waiting in the wings, albeit involving families without the financial wherewithal of Tom Freston. Ultimately, I am hopeful that when the other circuits and the high court next consider the issue, the discussion will shift from the purely theoretical to the practical i.e. what really happens in the IEP process.
It is hard to accept the fact that loving and caring school districts acting in complete good faith can still sometimes make horrendous mistakes. But unfortunately, especially in urban areas like New York City, potentially disastrous IEP situations happen on a daily basis. With the rebuttable presumption of competence already provided by the high court’s decision in Schaffer, there already is a fair balancing of interests that protects the school district while at the same time allowing the aggrieved parent to try to meet his or her burden to prove that the local educational agency has not done its job. If the parent fails to meet that burden, the parent will not prevail, and the case will be dismissed. Where there is a deprivation of FAPE, there must be continued access to the court system to ensure the provision of due process. That is, in essence, what the holding in Tom F. is all about–receiving one’s day in court. It is hard to believe that parents were only one vote shy of having that right taken away.”
We did not have to go to due process; we did end up having to move into another town after the private school that welcomed Charlie was forced to close. Things have been good at school for Charlie—I visited him in his classroom last week and saw a busy, engaged, student, talking a lot and clearly, learning to use a calculator.
But things can change; Charlie himself is always changing and we have to make sure that his needs, as they evolve, are appropriately me. And I need to know that we could have our day in court, if that might someday be necessary.
1659 days ago
[...] and any student who lives in the town can attend; while I certainly appreciate the efforts of special ed lawyers, I would far rather spend my dollars on the teachers and therapists who spend their days with [...]
I’ve come to believe that this is the courts’ method for keeping court calendars manageable and making their own job clearer in social litigation. You see the same thing in custody hearings; a parent must harm the child, sometimes seriously, before the courts will remove the child or require supervised visitation. Which often leaves divorced custodial parents frantic. It can be very difficult and costly to prove that your child is suffering harm, or in danger, with the other parent.
What this ruling says to me is that the courts aren’t anxious to play chicken with the school districts. I would be very surprised if judges really wanted to try to evaluate what happens in the IEP process. Every third parent who disagreed with his kid’s IEP would end up in court, and when districts are running at 20%+ IEP kids, that’s a lot of backlog. Not to mention gigantic expense. Just think of all the expert testimony and observation that’d be required.
Kristina, this problem ties in, I think, to the general invisible caregivers/mothers problem — a bad IEP can cause chaos and real harm in not just the child’s life, but the whole family’s. And the family is likely to be vulnerable to start with. But because so much of the trouble happens outside of school, it’s invisible. Making that publicly visible — the anguish, the lifelines that have to be dropped, the expense from missed work, the trouble in rental situations, etc. — might help in encouraging schools to be more cooperative. My guess is that this is another area where being willing, publicly and as a group, to work with schools on autism-ed funding issues could be helpful. Say there were some external national foundation that said to schools, “We will substantially help you meet your IDEA obligations for autistic kids– but you have to sit down and work with these parents on how that happens, you have to be flexible and more willing to step outside your usual lines, and you have to be committed to it.”