Law Lecturer Susan Cole on Supreme Court’s special education ruling

Susan Cole, HLS Lecturer on Law and director of the Trauma and Learning Policy Initiative Clinic at the WilmerHale Legal Services Center at HLS, was interviewed in the Washington Post on the Supreme Court’s recent special education ruling in Forest Grove School District v. T.A.  The Q&A, “The Special Education Ruling,” with Cole and the Post’s Stacey Garfinkle appeared in the July 6, 2009 edition of Washington Post.

The Special Education Ruling

HLS Lecturer on Law Susan Cole

HLS Lecturer on Law Susan Cole

Last month, the Supreme Court found that parents of children with disabilities may seek reimbursement for private school tuition even if the child has never received special education or related services from the school district.

The Supreme Court ruling has left lots of questions for parents of special education students as to how the law affects them. To answer those, I spoke with special education lawyer Susan Cole, a Harvard lecturer on law and a clinical instructor. Attorney Cole is the director of the Trauma and Learning Policy Initiative, which is a joint program of Harvard Law School and Massachusetts Advocates for Children. Here’s an edited Q&A with her about the decision and its impact:

Q: Could you please describe the facts of the case?

The Forest Grove case involved a public school student who had experienced problems focusing and completing assignments from kindergarten through high school. His parents requested and received a special education evaluation for him from the public school during his freshman year. However, the evaluation, which was found legally insufficient by the hearing officer, did not address all areas of suspected disability. Based on the evaluation, the school denied the student any special education services. Ultimately, the parents sought experts who identified the boy as having ADHD and other disabilities related to memory and learning. Based on expert advice, the parents placed the boy in a private school for children with special needs and sought the help of a lawyer to inform the public school and file a request for reimbursement. The school asked the parents for and received their consent to evaluate the boy a second time, again finding the student was not eligible for special education services. Thus, the court affirmed an appellate court decision that the parents had met their burden of proof of showing that the public school had not provided the student with a free appropriate education, as required under the Individuals With Disabilities Education Act. In doing so, the court confirmed its longstanding precedent that parents can receive reimbursement for the cost of placing their child in private placement, without school department consent, if 1) the school failed to provide a free appropriate education (FAPE) to the child and 2) the private placement that the parents placed the child in was appropriate. In Forest Grove, the court found that the parents had met their burden to show that the school had not provided FAPE and that the private school placement was appropriate.

 Who does the ruling apply to?

Any children covered by Part B of the special education laws (also known as the Individuals With Disabilities Education Act or IDEA); this includes children ages 3 to 22. The upper limit on age changes by state. In some states, children are covered to age 18. Other states have chosen to cover people to age 22.

What’s the process for providing special education to students and at what point do parents have a right to say the school is not providing a appropriate education?

The special education process starts when a parent or other person in a caregiving position concerned about a child’s development refers the child for a special education evaluation. Once the referral is made, the parent is given a consent form to sign before any evaluation can take place. After the parent signs the form, the school evaluates the child in all areas of suspected need. The parent who places a child in a private school without giving the school an opportunity to evaluate is not likely to receive reimbursement.

Once the evaluation is completed, a team composed of the child’s experts (teachers, the parents, and others whom the parent may invite) determines whether the child has a disability that interferes with his or her ability to progress academically, socially and/or emotionally. If so, the child is determined eligible for special education and the team then develops an Individualized Education Program (IEP) for the child. The IEP must provide supports and services that enable the child to receive what is called FAPE (a Free Appropriate Public Education)

FAPE is defined as special education and related services provided at no cost to the parent that can enable a child to meet state education standards. Determining what FAPE is for an individual child requires analyzing the child’s academic progress (e.g. tests, opinions of experts, grades, classroom observations, etc.); the child’s social and emotional growth and behaviors in relation to typical peers; the child’s individual potential; his/her unique needs; and the benefits of enabling the child to remain with his typical peers.

If the parent feels that the IEP will not enable the child to progress, then she/he can accept or reject the IEP in whole or part and go to a hearing. The parents can place the child in a private school prior to the hearing. However, if the hearing officer finds that the IEP offered by the school provides FAPE, then the parents will not be reimbursed. 
Remember, parents put a child in private placement at their own risk. It’s not easy to win reimbursement. It’s a legal process and usually requires filing a complaint.

What will the ruling change?

I don’t think the ruling will change legal practice in this area. Parents should understand that the law places a very high priority on placing children in the least restrictive environment. This means the law has a preference for children to attend the school they would have attended but for the disability. It is uncommon for a child to be placed in a private or residential placement, unless the district can’t or won’t provide FAPE. What appeared to happen in Forest Grove is that the school failed to evaluate the child properly, and based on an inadequate evaluation refused to provide services to address his needs, leaving the parent with no choice but to place the child in a private school. The court was clearly not declaring open season for putting children in private schools. But it was saying that where the school allowed a child to fail and refused to provide FAPE it would require the school district to pay.

However, this case should remind schools to be very careful to identify students with disabilities that affect progress at school as early as possible and provide interventions that enable the students to succeed. Schools ignore a student’s struggles at their own risk because parents will feel forced to consider private placements and might be successful in winning reimbursement. In addition, the case should remind schools of the importance of providing quality evaluations. The hearing officer found that the evaluation of the Forest Grove student was legally insufficient because the school did not evaluate in all areas of suspected need as required by law. The outcome in this case may have been avoided if the school had provided a quality evaluation.

Parents, on the other hand, should understand that the determination of whether a child is receiving FAPE is made by examining all the evidence. As it was before the new ruling, it is best to seek the advice of an attorney about the likelihood of reimbursement before removing the child to a private school. If your child is struggling, however, don’t wait too long, ask for an evaluation and keep on top of the school to evaluate. If you disagree with the evaluation, seek an independent evaluation and share it with the school. Remember, before awarding private school tuition, hearing officers and courts will look to see if the parent gave the school a chance to provide the child with his free appropriate public education. So watch your children like hawks, collaborate with the school, and try to make things work for your child. A private placement is a last resort but if your child needs one, don’t hesitate to look into the option.

How does reimbursement work?

If parents enroll a child in private school without the public schools’ consent, the court can require the agency to reimburse the parents so long as the private school is an appropriate placement and the parents can prove the child was not receiving FAPE. However, the court has what is called equitable jurisdiction in these cases. This means the court has room to act in a way that seems fair. For example, the cost of reimbursement may be reduced or denied if the parents did not inform the IEP team that they were rejecting the IEP plan at the most recent IEP meeting; if the parents didn’t give written notice 10 business days prior to removing the child from the public school to the private schools; or if the parents didn’t make the child available for an evaluation from the public school.

Are there portions of the ruling that are not completely clear to lawyers familiar with it that could result in parents/school systems landing back in court?

This ruling is an affirmation of a 1985 decision called School Committee of Burlington v Department of Education of Mass. Burlington has been around now for 24 years so the law is fairly clear. The focus of discussion in Forest Grove was on a clause added to the special education laws in 1997 stating that a court may order reimbursement to parents where children had previously received special education services. The school argued that this meant the child had to first receive services in special education before the parent could receive reimbursement. But the court disagreed saying this would mean that the students who couldn’t get any services would have less rights than those to whom the school provided some services. The court also found that the school’s interpretation would conflict with the “Child Find” section of the law that requires states to “identify, locate, and evaluate … all children with disabilities” to ensure they received needed special education services. If anything, this ruling provided a clearly written and welcome clarification of the current law.