Special Education Law Blog

Stinging Back Over Tom F.

I am glad the folks over at NSBA's BoardBuzz have a good sense of humor over my criticisms of their commentary of the Tom F. case. They 'stung' back today with a response to yesterday's blog. My only responses to their comment is that district's do not have to pay for an out of district placement if they meet the relatively low standard of Rowley, and unilateralism on the part of schools, more often than not, leads to conflict (and yes, some parents are at fault in this regard). Most parents undeniably chose this risky and tough road only as a last not a first resort.

In the Tom F. Case The Tie Goes for the Parents

In the Tom F. case the U.S. Supreme Court issued a decision (see pdf below)   which effectively ruled in favor of a parents right to place their child in an out of district placement, sue for reimbursement, even if that child had never been enrolled in the school district.  The decision was 4 to 4 with Justice Kennedy not participating.

The Federal Appeals Court in New York State (2d Circuit Court of Appeals) ruled in favor of  parents' right to seek reimbursement, even if they had not enrolled their child in public school. With a tie vote the lower court's ruling is affirmed or upheld. (see Pete Wright's commentary on the case.)

Download tom_f.pdf

Illinois District Brought to Shame by Amanda Windom

The expression is that it takes "two to tango." In this case the two were some dedicated parents and District #203 in Naperville, Illinois over an AAC device known as the Tango.  School District #203 in an act of overt meaness recently denied a six-year-old boy with autism access to his communication device, the Tango.  The District first agreed to supply the Tango and than decided that the child could only have the device if his parents agreed to put him in a summer program that had been deemed inappropriate.  The Hynes family appeared in court pro se, and the school district, represented by its counsel, was literally brought to shame.

The Hynes, in an attempt to enforce their son's rights to access the  Tango, moved in state court for a Temporary Restraining Order.  On June 27, 2007, Mr. Hynes  appeared before Judge Milton Shadur in federal court, responding to the school's efforts to have the case moved to Federal Court.   Judge Shadur decided in favor of the family directing the famous question "Have you no shame?" from the McCarthy hearings, to the district's counsel for trying to remove the Tango from the child. Judge Shadur also stated that the school district was "blackmailing" the parents trying to get them to agree to a program that their "own professionals have not found to be in his best interest".Download JudgeShadurDecision-5.pdf

Later that day the District  sent the family a gag order stating that they would provide the device only after the family agreed to keep quiet about Judge Shadur's decision.  Instead of responding, the Hynes family re-filed the Temporary Restraining Order in State Court.

Winkelman Case Decided for Parent

The Winkelman case was decided 7-2 in favor of parents. So parents will be able to represent their children in court.  Details and analysis to follow. It is a great feeling to win and by such a wide margin !

Fighting Propaganda Over Tom F. With Facts

The U.S. Supreme Court latest case to be reviewed is a New York case referred to as Tom F. over parental rights to receive reimbursement for private school placements. As with many public discussions the media coverage in this case is one-sided, biased against parents, and based upon false perceptions rather than fact. It is up to all of us to take a public stand and to slam back whenever false impressions of students with special needs are portrayed publicly or for that matter in schools or at meetings.

The following post is from Selene Almazan who is has been on the front lines for years fighting for inclusion in Maryland as part of her job at the Maryland Coalition for Inclusive Education (MCIE) and as an officer of the Council of Parent Attorneys and Advocates (COPAA). Her post is a reprint of a letter that she sent to the New York Times rebutting incorrect and misleading statements that have been published regarding parents and the need for private placements. Unlike this typical news story, her rebuttal is based on fact and data, not perception and innuendo.

Supreme Court Roundup of Tom F. and Winkelman

The Disability Law Blog has a nice roundup of the Tom F. case and today's oral arguments in Winkelman. The report on the Winkelman case that I think is important is the forcefulness that the U.S. Solicitor General, the Supreme Court advocate for the U.S. Government, argued in favor of the parents' position. For a pdf of the oral arguments click here. [This link provided courtesy of my collegue and fellow blogger Sandy Hausler].

The report on the Tom F. case explains the issue in terms of whether parents should be burdened with the additional obligation of seeking reimbursement for private tuition or home-based ABA services only after first enrolling in the school's program. I have successfully made the argument that enrollment is not a necessary prerequisite for reimbursement but on the other hand as a matter of fact it is hard to argue against  a program that the child has never experienced. 

I will be blogging on the decision in Winkelman which it is expected this Spring before the Court recesses for the Summer and on the briefing unfolds in Tom F.

Supreme Court to Decide Tom F. Case On Reimbursement

On Monday, Feb. 26, 2007, the U.S. Supreme Court granted certiorari in Board of Education of the City School District of New York v. Tom F. ex rel. Gilbert F., No. 06-637 (U.S. 02/26/07, cert. granted). This case involves the question of whether a student who receives special education services from a private school is eligible for tuition reimbursement if he never obtained such services from a public school district.

Winkelman Case Set for Oral Argument

The Winkelman case has been set for argument on February 27, 2007 before the U.S. Supreme Court over the issue of whether parents can represent their children's IDEA rights. For an excellent and readable summary of the arguments click here.

Winkelman Briefs Available for Review

COPAA, the Conference of parent Advocates and Attorneys, has posted on online a copy of the briefs in the Winkleman case which is set to be argued in February 2007. COPAA also filed an amicus brief as friend of the court.  I discussed the ramifications of the Winkleman case in earlier posting.

Winkelman: Supreme Court to Review Case Involving Parents Representing Their Children

The U.S. Supreme Court has now accepted for review the Winkleman case out of Ohio which has been pending on the Court's docket.  I wrote about this case some time ago. Since that time the Bush Administration's Solicitor General's office argued both for the Court to take the case and for the case to be decided in favor of  parents' right to represent their children in IDEA cases.

If this case is decided in favor of the parents' case that will have practical implications for many other parents, who represent their children because they either can not afford to hire an attorney or no attorney is available who is qualified to take the case.  In addition, in the course of deciding the case the Court could very well create "magic language" as to the centrality of parent's role in the process of advocating at IEP meetings and other contexts, that could be helpful to parents even when a case is not at hearing.  Stay tuned for what hopes to be positive legal developments after losses in the Shaffer [burden of proof on parents] and Arlington Central [no recovery of expert fees even when parents win] cases.