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Special Education Placement

How can parents obtain placement for their child at a school that is not on the state's "approved" list? The leading U.S. Supreme Court case on that subject is Florence County School District 4 v. Carter, 510 U.S. 7 (1993), where the Court held that parents who enroll their child at a non-approved private school may be entitled to reimbursement for tuition and related expenses if they can prove that:

the child was deprived of a Free Appropriate Public Education ("FAPE") by their school district; and
the program chosen by the parents was "appropriate."

The Court refused to deny reimbursement to parents for such a placement merely because the private school chosen by the parents "lack[ed] the stamp of approval of the same public school system that failed to meet the child's needs in the first place." [Florence County S.D. at 14.]

Since the Florence County S.D. decision, people working in special education litigation have wrestled with the meaning of the requirement that the program chosen by the parents be "appropriate."

Assuming that the school system has failed to provide an adequate educational program, what standards should be applied to a parent's unilateral choice of placement?
Does the program need to be a full-blown "special education" program with its staff fully certified as special education teachers?
Does it need to provide the same or a comparable curriculum to that offered in a public school program?
Does "appropriate" mean the same for a parent's unilateral choice of a program as it does when a court examines the quality and types of services offered in the public school program under an IEP?

A Federal District Court judge in Massachusetts has now answered this question in dramatic fashion by ordering reimbursement to parents for several years of tuition paid to a private sectarian (Christian) school which has no special education certified teachers on its staff. The case is called Matthew J. v. Massachusetts Department of Education, 989 F.Supp. 380 (D. Mass. 1998). In Matthew J. the due process hearing officer had found that the school system had failed to provide appropriate special education programs for four years. However, she refused to order tuition reimbursement to Matthew J's. parents. The hearing officer cited two principal reasons for this decision:

that the private school chosen by the parents did not offer "special education" services and did not therefore conform either to IDEA or to state requirements; and
that since the private school in question provides a sectarian religious education, tuition reimbursement would violate both the Establishment Clause of the U.S. Constitution and the Massachusetts Constitution.

The Court rejected this reasoning and ordered reimbursement for all four years of tuition.

In reaching this decision the Court evaluated not whether the parent's choice of school offered a "special education" program, but whether the services, appropriateness of peer grouping, and other elements of the program were appropriately responsive to the student's needs. This student's disabilities were social/emotional rather than "learning disabilities." What educational and psychological professionals had recommended was for him to be in a safe, structured, supportive environment with small teacher-student ratios, appropriate peers, and substantial individual attention in order to learn effectively. The Court found that the program offered by the sectarian school did provide these elements and that the student in fact maintained adequate grades and graduated from high school at the private school. On that basis, the Court concluded that the parents had selected a unilateral placement that was sufficiently "appropriate" to qualify for tuition reimbursement.

In addition to that analysis, the Court pointed out that the school system itself had indicated its approval of this private school by designating it as the placement in two IEPs and seeking the state Department of Education's approval. It was only when the state refused to approve the placement that the school system backed out of supporting it. Along with the school system's failure to offer its own appropriate program -- or for some periods any program at all -- this behavior was probably a critical factor in the Court's decision. Where the hearing officer had found the school system to have failed in its responsibility to provide FAPE for four years and where the school system itself had written the parents' selected school into the IEP, a court would naturally want to find a way to rule for the parents.

It remains to be seen how far other courts and hearing officers will go in following the lead of Matthew J. Even the Matthew J. court would probably not have approved reimbursement for this placement if experts had indicated that Matthew needed specific special educational services to address, for example, a reading disability. Even for this student, however, approving tuition reimbursement under IDEA for a school that has no "special education" program certainly pushes the boundaries of Florence County S.D. as far out as they are likely to go.

Whether other decision makers are willing to go that far or not, however, the underlying principal of Matthew J. should survive:

When parents make a unilateral placement because their school system has failed to provide FAPE, they should not, and cannot, be required to meet the same exacting standards that a school system must meet when it provides a special education program. Parents are not normally educators or related professionals themselves and can only do their best in trying to make up for what their school system has failed to do for their child.

As for whether reimbursement for tuition at a religious sectarian school is prohibited by the Establishment Clause of the U. S. Constitution or similar provisions of a state's Constitution, the Court found that tuition reimbursement would not advance religion in a way that violates those provisions. The Court reasoned that such tuition payments would not be made in order to finance religious activity and would not have that effect; their purpose and effect is only to provide appropriate special education services to a student eligible to receive those services. "In short," said the Court, this school's "Christian identity was happenstance, and reimbursement would not offend the Constitution." [Matthew J. 989 F.Supp. at p. 392.] This holding is consistent with the U.S. Supreme Court's decision in Agostini v. Felton, - U.S. - , 117 S.Ct. 1997, 2010 (1997) and Zobrest v. Catalina Foothills Sch. Dist.

Parents and their attorneys and advocates need to be very wary of basing decisions to enroll children at private placements on a decision like Matthew J. When a lower federal court takes a position that pushes boundaries, we cannot be certain that other lower courts will do the same or that higher appellate courts will ultimately uphold their reasoning. At the same time, cases like Matthew J. can be very helpful in arguing for school systems to settle cases involving similar issues and fact patterns. The most important consequence of having private alternative educational programs for children with special educational needs is that school systems must develop and maintain appropriate programs of their own to avoid having to pay for those alternatives.

Robert K. Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, Massachusetts. Among other areas of practice, Mr. Crabtree concentrates in special education and disability law.

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