Susang1961@aol.com .

TO: NDSC Members and Affiliated Parent Groups

FROM: Susan Goodman, Director
Governmental Affairs

DATE: August 21, 2007

Special Education Victory for New York Parents

Background

In 2005, in a case called Schaffer v. Wiest, the U.S. Supreme Court held that parents have the burden of proof in cases brought under the Individuals with Disabilities Education Act (IDEA). This means that if you request a due process hearing because you disagree with the schools proposed placement of your child, you have to prove that the placement they propose is inappropriate. Prior to this ruling, the school would have to prove that the placement is appropriate. This puts an unreasonable burden on parents!

Parents in New York state have scored a huge victory in getting legislation passed and signed by the Governor that shifts the burden of proof back to school districts in most cases.

Governor Spitzer Signs Legislation Shifting Burden of Proof to School Districts in Disputes over Special Education Programs
New Law Reinstates Long-Standing Approach to Hearing Process

Governor Eliot Spitzer today announced that he has signed legislation creating a fair and effective process for parents of children with disabilities who chose to challenge school districts’ decisions about which educational services are appropriate for their children.  

This new law puts the burden on the school district to prove that it is satisfying its legal obligation to provide an appropriate individualized education program for a student with a disability.  At the same time, the law strikes a balance between a parent’s desires for private placements and a school district’s obligation to pay for costly out-of-district services by requiring parents to prove that a private placement outside of the school district is more appropriate for their child.  

“Determining which services are most appropriate for our disabled children is important to ensuring that every child has the opportunity to succeed,” said Governor Spitzer.  “This bill rightly places the burden of proof on school districts that have the expertise needed to assess options and the responsibilities for implementing individualized educational plans.  The bottom line here is that we need to have a system that works in the best interest of children.”  

Under the federal Individuals with Disabilities Education Act (IDEA), every child with a disability is entitled to receive a “free appropriate public education.” To that end, school districts are required to develop a plan to meet the specific needs of each child with a disability.  The IDEA protects children’s rights by giving parents and school districts the right to an administrative hearing if they cannot agree on which services the child needs.

For more than 30 years, when these administrative hearings were brought in New York, parents were required to prove the appropriateness of the individualized education program.  A 2005 U.S. Supreme Court ruling put the burden of proof on the party requesting an administrative ruling, most often parents, for all states that did not have a specific law or regulation on this issue.  Because New York did not have a law or regulation on this subject, the Supreme Court’s decision effectively reversed the State’s longstanding rule.  

Received from wrightslaw.com

U.S. Supreme Court to Hear Oral Argument in New Case

On Monday, October 1, 2007, the U.S. Supreme Court will hear oral argument in New York City Board of Education v. Tom F., on Behalf of Gilbert F., a Minor Child.

The Court will decide whether all children with disabilities, including those who are enrolled in private programs, are entitled to a free appropriate public education (FAPE). The decision will have significant implications for parents, school districts, and children with disabilities who receive special education services.

History

The case came before the Supreme Court after the U.S. Court of Appeals for the Second Circuit remanded the decision by the District Court.

The Second Circuit held that the IDEA was not meant to deny reimbursement to students who have never been enrolled in public school. To rule otherwise would require parents to enroll their children in inappropriate public school programs before they could be eligible for tuition reimbursement.

In New York City Board of Education v. Tom F., the Supreme Court will determine if a child will be forced to "try" an inappropriate placement before the parents can remove the child to an appropriate placement and seek reimbursement.

Significance

If the Supreme Court affirms the decision by the Second Circuit, parents will have the right to obtain reimbursement from the school district, even if their child was never enrolled in a public school special education program. If the Supreme Court reverses the Second Circuit, parents will have two choices: they can place their child in an appropriate private program and forfeit any chance to obtain reimbursement; or, they can place their child into an inappropriate public school program so they can later remove the child from that program and seek reimbursement.

For a summary of the NYC v. Tom F., question presented, significance, and links to the briefs filed by the parties, go to: http://www.wrightslaw.com/news/07/nyc.tomf.htm

If you have questions or comments about this Newsline, please contact Susang1961@aol.com.