Court Weighs Funding For Special Education
Private-School Tuition at Heart of Case

By Robert Barnes and Daniel de Vise
Washington Post Staff Writers
Monday, April 27, 2009

The Supreme Court will consider a question this week that has riled parents, cost local school boards here and across the country hundreds of millions of dollars, and vexed the justices themselves: When must public school officials pay for private schooling for children with special needs?

The issue has emerged as one of the fastest-growing components of local education budgets, threatening to "seriously deplete public education funds," which would then detract from the care of students with disabilities who remain in the system, according to a brief filed by the nation's urban school districts.

It has also become one of the most emotional and litigious disagreements between frazzled parents and financially strapped school officials, with the battles often ending in court. District of Columbia schools allocated $7.5 million of this year's $783 million budget just for such legal costs.

Congress and the court have made it clear that every child with disabilities has a right to a "free appropriate public education." If the school system can't provide one for a child with a disability, it must reimburse parents for private school costs.

But the question for the court now is whether schools must be given a first chance to provide those services before placing the child in a private school. Some parents say that could force students, especially poor ones, to spend time in an undesirable situation before getting the help they really need.

"It's a teensy, teensy percentage of families that would be able to take the risk of placing their students" in private school with their own funds and then seek reimbursement, said Lyda Astrove, a longtime Maryland special-education advocate.

But the schools and their supporters say a ruling in favor of the parents would "open the door for parents to completely bypass the public school system and go directly to private school, and then ask for reimbursement," said Nancy Reder, deputy executive director of the National Association of State Directors of Special Education, an Alexandria group that has filed an amicus brief in the case.

The trend in special education is toward inclusion of special-needs students in the general student population, a goal mandated by federal law to end the academic segregation of children with disabilities. School systems in the Washington region tend to oppose sending students to private settings for that reason, as well as for its cost.

In Montgomery County, for example, private tuition expenses have risen from $21 million in fiscal 2000 to a projected $39 million in fiscal 2010.

The Montgomery school system, which has a more comprehensive special-education department than many other systems, has 614 students attending private schools this year. Fairfax County schools spent $15 million on tuition in the 2007-08 academic year, the most recent data available. The system now has 233 students in private schools.

But others spend much more. Prince George's County schools, with fewer services, this year spent $56 million on 1,168 students. And the District, with a historically troubled special-education department, has 2,300 students receiving private care at a cost of $141 million.

The students tend be older adolescents, usually male, with emotional disturbances, autism or other disabilities that require more adult supervision than public schools can provide.

The issue before the court is over two parts of the federal Individuals With Disabilities Education Act. First, the act guarantees a free, appropriate public education to "all children with disabilities." But a 1997 amendment to the act specified tuition reimbursement for students who "previously received special education and related services."

Officials in Forest Grove School District in Oregon said that meant they did not have to reimburse the private school costs for a boy referred to in court documents as T.A. Even though the boy had attended public schools from kindergarten to high school, no learning disability had been diagnosed (although his counselors discussed whether he had one), and thus he had never received special-education services.

During his troubled junior year of high school, his increasingly worried parents enrolled him in a private school and paid for testing, which showed he had attention-deficit hyperactivity disorder and other disabilities.

The legal battle between the parents and the school system over the diagnosis and tuition reimbursement began in 2003 and stretched until last year, when the U.S. Court of Appeals for the 9th Circuit ruled for the parents.

It said Congress's intent was that "all" children be covered by the law, not just those who had previously received special-education services.

The Obama administration told the Supreme Court that any other interpretation of the law would produce "absurd results, especially in cases like this one, where the only reason the child did not receive public special education is that the school district wrongly refused to provide it."

But appeals courts have split on the issue, and so has the Supreme Court. The justices -- without Anthony M. Kennedy, who recused himself -- tried to settle the same issue two years ago in a case from New York but divided 4 to 4. As is the tradition on the court, Kennedy did not say why he sat out the first case or why he is now back in.

His often pivotal status seems even more so in Forest Grove School District v. T.A.

School officials and parents hope the court will provide clarity. But disputes between the two sides are not likely to end.

The Lindner family of Chevy Chase risked $75,000 to send their son Peter John to the private Ivymount School in Rockville for a year after reaching an impasse with the public school system, which wanted him in a program for children with orthopedic disabilities. Their son suffered, Theresa Lindner said, from a terminally degenerative neurological disorder.

The family lost an administrative law hearing and appealed unsuccessfully to federal court. They have moved to a Boston suburb to care for Peter John, who can no longer attend school.

"It ended up that it cost them more to fight us than it did to pay for the single year at Ivymount," Theresa Lindner said.

She and other advocates worry that they are losing ground in the courts.

"I think many of us have concerns that the IDEA is slowly being chipped away," Lindner said. "I have great concerns that we're not moving forward, we're moving backward."