ALERT! RICH DISABLED PUPILS GO TO PRIVATE SCHOOLS AT PUBLIC
EXPENSE (April 18, 2002)
Download the online version of this alert at:
On April 17 2002, The New York Times published "Rich Disabled Pupils Go to
Private Schools at Public Expense."
The article described testimony by Chancellor Harold Levy and Francine Goldstein
before the President's Commission on Excellence in Special Education.
Unfortunately, their testimony was not accurate.
The purpose of this Alert is twofold.
1. To set the record straight.
2. To teach you how to find answers to your questions about the law.
As we go through the reauthorization process for IDEA, you are likely to read
inaccurate statements from school officials. You need to know how to check these
statements for accuracy. In this article, we will walk you through the
Mr. Levy testified about reimbursing parents for private services and schools:
"In more than half the cases . . . applicants have never sent their
children to public schools, nor do they ever intend to."
Ms. Goldstein testified "A disabled child receiving public aid to attend a
private school need not have been previously enrolled in a public school."
While these statements elicit emotional reactions, they are not true. One
wonders if school officials did not do their "homework" (did not read
the law) or if other factors were at work when they testified before the
To find out what the IDEA statute says about reimbursement, go to Section 1412
in WRIGHTSLAW: SPECIAL EDUCATION LAW (begins on page 42).
Now go to (a)(10)(C)(i) -- (WRIGHTSLAW: SPECIAL EDUCATION LAW, page 44)
A portion of the statute from 20 U. S. C. § 1412(a)(10)(C)(i) is clipped below:
(i) In general.--Subject to subparagraph (A), this part does not require a local
educational agency to pay for the cost of education, including special education
and related services, of a child with a disability at a private school or
facility if that agency made a free appropriate public education available to
the child and the parents elected to place the child in such private school or
(ii) Reimbursement for private school placement.--If the parents of a child with
a disability, who previously received special education and related services
under the authority of a public agency, enroll the child in a private elementary
or secondary school without the consent of or referral by the public agency, a
court or a hearing officer may require the agency to reimburse the parents for
the cost of that enrollment if the court or hearing officer finds that the
agency had not made a free appropriate public education available to the child
in a timely manner prior to that enrollment. END HERE
As you see, the law states in (i) that a public school is not required to
provide reimbursement if the public school made a free appropriate education
available to the child. If the child has not "previously
received special education" from a school district, the parents are not
entitled to reimbursement.
The Supreme Court issued two decisions about reimbursement when public schools
fail to educate disabled children:
Burlington (1985) and Florence County School District IV v. Shannon Carter
Both decisions are in the Casebook section of WRIGHTSLAW: SPECIAL EDUCATION LAW.
Burlington begins on page 323, Carter begins on page 343.
Table of Contents: http://www.wrightslaw.com/bks/lawbk/toc.pdf
The law is well-settled that the public school must fail to provide an
appropriate education before parents are entitled to any reimbursement for
private educational services or a private school placement.
Reimbursement was also addressed during Oral Argument in Florence County v.
Shannon Carter. Mr. Ayer was the attorney for Florence County School District
IV. The Justices are questioning him:
QUESTION: Well, let me ask you the question in a different way, and if I -- this
is the way I see it, and if I'm wrong please tell me. The school system has not
been able to provide the child with an education that the statute requires.
That's a given. What is the remedy for the parent? MR. AYER: In this case? In
QUESTION: In this case. The school system has not done what the statute
requires. The parents then have a child in need of an education. What is the
MR. AYER: Well --
QUESTION: -- for the default on the part of the public school system? MR. AYER:
The parents have the right to remove the child, as was indicated from -- in
Burlington, to remove the child from the public school and find an alternative
placement. The issue here --
QUESTION: And that's what these parents did.
- - - -
QUESTION: Once the school district has failed to meet its obligation, the parent
has the right, if the parent wants to take the chance, to send the kid to any
school at all. If the school doesn't meet up to fulfill the obligation
substantially of the act, the parent gets no reimbursement. That's a substantial
sanction, but I don't know why the parent has to - - MR. AYER: Well --
QUESTION: You know, the school board had its chance, decided not to provide
these services, and it seems to me it falls back into the lap of the parent. END
From the transcript of Oral Argument in Florence County v. Shannon Carter,
located at our website:
Why did school officials provide incorrect testimony about this issue? Are they
ignorant of the law? Did they intend to mislead the Commission?
FINANCIAL DRAIN CLAIMS
About parents of disabled children, Mr. Levy complained: "They have drained
resources that are critically needed for the system . . . You cannot give one
kid the Cadillac and the others the back of the bus."
Disabled children are not entitled to Cadillacs or lemons. They are
entitled to a free appropriate education from which they receive educational
Nine years ago, school districts made the same financial disaster arguments in
the media and in amicus briefs filed Shannon Carter's case. In their unanimous
decision in Carter, the Supreme Court rejected these "Cadillac"
"Yet public educational authorities who want to avoid reimbursing parents
for the private education of a disabled child can do one of two things: give the
child a free appropriate public education in a public setting, or place the
child in an appropriate private setting of the State's choice. This is IDEA's
mandate, and school officials who conform to it need not worry about
EMPLOYMENT & INDEPENDENT LIVING
The purpose of the Individuals with Disabilities Act is "to ensure that all
children with disabilities have available to them a free appropriate public
education . . . designed to meet their unique needs and prepare them for
employment and independent living." 20 U. S. C. § 1400(d)(1)(A)
(See page 24, WRIGHTSLAW: SPECIAL EDUCATION LAW)
Does Mr. Levy claim it is unreasonable to require schools to teach disabled
children the skills they need for employment and independent living?
If Mr. Levy had a child or grandchild with special education needs, would he
leave his child in a failing school? We doubt it.
Shannon Carter's parents withdrew her from a public school that failed to teach
her to read, write, spell and do arithmetic. They placed Shannon in a private
school that taught her the skills she needs for employment and independent
Today, we are dealing with the same issues - public schools that fail to teach
basic reading, writing, spelling, and arithmetic skills to children with
Should parents listen to educators, assume that the child cannot learn, and give
up? No. Parents will mortgage their homes, cash in their retirement, and get
loans so they can place their children in schools where children learn the basic
skills needed for "employment and independent living."
WRITING BOOKS & TEACHING SKILLS TO LAWYERS & PARENTS
School officials claim "The Carter case created a proliferation of lawsuits
filed by parents requesting tuition reimbursement, and a cottage industry of
lawyers specializing in these cases."
"The Carters' lawyer, Peter Wright, has consulted in thousands of cases,
toured the country and published books on special education law, teaching his
skills to lawyers and parents alike."
We plead guilty to "publishing books about special education law." We
published WRIGHTSLAW: SPECIAL EDUCATION LAW so ordinary people could get answers
to their questions in the laws and regulations - and check the facts. We
published FROM EMOTIONS TO ADVOCACY to help parents negotiate with school
officials who may not always tell the truth.
We are also guilty of "teaching skills to lawyers and parents." At
advocacy training programs and Boot Camps, we teach parents how the law is
organized and how they can find answers to their frequently asked questions.
What about school officials' complaints about the "proliferation of
lawsuits filed by parents."
According to the National Council on Disability, an independent agency that
advises Congress and the President on disability policy, school districts are
using tax dollars to fund "expensive and time-consuming litigation"
"Even parents with significant resources are hard-pressed to prevail over
local education agencies when these agencies and/or their publicly financed
attorneys choose to be recalcitrant." ("Back to School on Civil
Rights," published in 2000 by the National Council on Disability)
THE REAL QUESTION
The question we must answer is this: Should we prepare our children, including
children with disabilities, for employment and independent living?
If our answer is "yes," we must require our public schools to teach
basic reading, writing, arithmetic and spelling skills. We must not force
children to remain in schools that fail to teach.
HOW SHANNON CARTER CHANGED SPECIAL EDUCATION
On January 5, 2002, The New York Times ran an article about Shannon, "How
Clip 'N Snip's Owner Changed Special Education" by Brent Staples.
"The people of Florence, SC know Shannon Carter as the owner of Shannon's
Clip 'N Snip, a barber shop where the locals get haircuts and conversation . .
"Shannon's public school teachers are no doubt surprised to see her running
a business and working out a financial plan. During the 1980's she finished
ninth grade failing virtually every subject, and was nearly illiterate."
"The schools told Emory and Elaine Carter that their daughter was
terminally lazy and would 'never see a day of college'. In truth, Shannon was
suffering from a common but undiagnosed learning disability that made it
difficult for her to comprehend the little that she could read. Alienated and
depressed, Shannon became suicidal."
To read " Rich Disabled Pupils Go to Private Schools at Public
Expense" go to:
NOTE! Before you can download articles from The New York Times site, you must
register and get a password! This service is free.
To read about Shannon's case, including all decisions, the transcript of oral
argument and Pete's analysis of the case, go to:
To learn about WRIGHTSLAW: SPECIAL EDUCATION LAW, go to:
Table of Contents: http://www.wrightslaw.com/bks/lawbk/toc.pdf
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