Special Education Dispute Resolution Series at the Special Education Law Blog

Just wanted to point all of you to the special education dispute resolution series of blog posts at the Special Education Law Blog. Jim Gerl and I have worked together in the past and I really respect his knowledge on special education law having long served as a due process hearing officer and now a consultant to states on special education due process issues.

Here are the posts in the series:

1. Dispute Resolution: When Parents and the School Disagree  -  This post provides a basic overview of IDEA and the possible resolution mechanisms it contains.

2. Dispute Resolution Methods: Part II  -  This post outlines changes to the dispute resolution process brought about by the IDEIA 2004 revisions and the subsequent regulations and OSEP interpretations.

3. Dispute Resolution Methods: Part III  -  This post talks about the changes to the mediation option of dispute resolution under IDEA.

4. Dispute Resolution Methods: Part IV  -  This post begins to address the due process hearing itself, including the qualifications of hearing officers and the statute of limitations.

5. Dispute Resolution Methods Part V  -  This post continues on the due process hearing itself, including notice of a hearing, amending the complaint/raising new issues, and pro se (unrepresented) parents.

6. Dispute Resolution Methods Part VI  -  This post continues on the due process hearing itself, including the new stay put provision and the IDEIA 2004 procedural/substantive rulings issue.

7. Dispute Resolution Methods Part VII  -  In this final installment, Jim provides a tie between IDEA and NCLB, throws in a lot of miscellaneous issues and provides links to additional resources.

Special Ed Law Blog and Board Buzz Mixing it up over Recent Tom F. Case

Just wanted to clue my readers in to the mini-debate that went on between the Special Education Law Blog and Board Buzz at NSBA. And, a hearty kudos to the authors for mixing it up a little. We could use more of that in the educational law blogosphere. Nicely done.

Post 1: In Tom F. Case Tie Goes to the Parents (Special Ed Law Blog)
Post 2: Bellyaching, Blogs and BoardBuzz (Board Buzz)
Post 3: Stinging Back over Tom F. (Special Ed Law Blog)\

Just for the record, I agree schools are not the weaker party as Special Ed Law Blog asserts and that IDEA should be construed in favor of the children/parents, but I agree with BoardBuzz that this case was wrongly decided by the 2nd Circuit and the 4-4 split just reinforced that wrong decision. IDEA was meant to provide special education services at public schools, not at private schools with unilateral placement. I also agree that this will not affect the large majority of special education cases, but I could certainly see a rise in private schools marketing their special education services to parents to encourage unilateral placement with tuition reimbursement. Given the cost of some of these private placements, even one student going this route will create a financial burden. It is not the end of the world, but it will be an additional financial burden on district budgets that are already stretched thin by special education. All that was needed to avoid the potential additional burden is to require parents to at least try the public school placement, which is not too much to ask as it is the public's dollars that will pay for education.

If the Supreme Court wanted to give parents some more rights in Special Education, they should have done it in Schaffer v. Weast and left the burden of persuasion on the school. The Tom F. case was inappropriately decided and I hope they take another case soon to clarify the issue (although they just denied cert. in Hyde Park v. Frank G., a case which could have provided more clarity).

Tom F. Case Already Published

In what has to be some sort of land speed record, the Supreme Court has already published the Board of Education of the City School District of the City of New York v. Tom F. case.

Here is the full text of the opinion:

PER CURIAM.
The judgment is affirmed by an equally divided Court.
JUSTICE KENNEDY took no part in the decision of this case.

I am not exactly sure why Justice Kennedy recused himself in this case, but his crucial role of the swing vote was eliminated and the court found itself equally divided, 4 votes for the school and 4 votes for the parents. Since the last Appellate Ruling was for the parents, that decision was not overruled.

                                                                     

I will update with more analysis links and will provide my own analysis at a later date, so check back.

N.Y. Times

SCOTUS Blog

Jurist.com

More on Board of Education of the City of New York v. Tom F.: Oral Argument

As promised, here is a little more on the Oral Argument at
the Supreme Court in the case of Board of Education of the City of New York v.
Tom F.

                                                                            

Jim Gerl's Analysis at the Special Education Law Blog:

When the oral argument began,
Justice Kennedy left the Courtroom. Apparently he recused himself from the case
and will not take part in the decision. The most active questioners were
Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a
few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing,
although at one point he and Bryer had a very polite private conversation for
few moments. I was more surprised by their civility than anything.



The thrust of the questions from Alito, Scalia and Roberts to the school
district attorney concerned what purpose could be served by reading the statute
to mean that Congress meant to require that a student with a disability be kept
in an inappropriate placement for just a short period of time.



The questions that Alito, Scalia and Roberts asked of the parents' attorney and
the Solicitor General (who argued in favor of the parents' position) centered
on whether the language used by Congress was really ambiguous and whether the
intent of Congress was to keep "well-healed" parents who have no real
intention of putting their children in public school from obtaining
reimbursement.

Read More ...

Oral Argument Transcript: Here



Legal Podcast by Ruth
Colker a Professor at Ohio State. Audio.



Debra Cassins Weiss at
the ABA Journal thinks the court
is leaning to denying parents the tuition reimbursement as many wealthy parents
would send their child to private school anyway.

PBS Newshour Analysis by Marcia Coyle (Video & Audio
Available).



****



Also, Justice Kennedy recused himself from the oral arguments and the case.
Combined with a court official's heads up to an artist, this is spurring rumors
of an imminent departure from the bench. Here is the blurb in Legal Times.

Kennedy recused himself in the Tom
F. arguments, quietly slipping out of his chair and out of the courtroom in
the short lull between the two arguments. Justices very rarely give
explanations for recusal and the reason behind Kennedy's decision to recuse in
this case was not widely known. A Court official gave a friendly heads-up to an
artist starting a courtroom sketch before the justices took the bench, telling
her to be sure to draw Kennedy during the first hour of argument.

Bd. of Educ. of the City of New York v. Tom F.: Oral Argument Today

The Supreme Court will hear oral arguments today in a special education case regarding public school tutition reimbursement for private school tuition in the case of Board of Education of the City of New York v. Tom F. As with many cases in special education, this one is somewhat complicated and relies heavily on the langugage of the Individuals with Disabilities Education Act, particularly 20
U.S.C. § 1412(a)(10)(C)(ii). Basically, in question is whether or not a child must actually attend a public school placement (give it a try) before he or she is entitled to private school tutition reimbursement from the public school. The Second Circuit has already ruled in favor of the parent. School groups are claiming it would put an additional burden on already tight special education funds while advocacy groups are arguing the provision of such reimbursement is necessary to better serve special education students.

                                                           

It should be an interesting case.

A full brief of the case is provided by the Legal Information Institute Bulliten (who did a very nice job and we appreciate the service).

And, my friend Jim Gerl at The Special Education Law Blog will be at the Supreme Court tomorrow and will have analysis afterward, so be sure to check his site.