Who pays for what? (3): In this case, New York

The Supreme Court has ruled that New York City schools must reimburse former Viacom executive Tom Freston for private special education for his son, who has learning disabilities. The Supreme Court voted 4-4, with Justice Anthony Kennedy not participating, and thus upheld a lower court ruling that sided with Freston. According to that ruling, even though the student was enrolled in a private school and his learning disabilities were diagnosed after he was enrolled in it, the city had to pay for the student

From today’s Associated Press:

The New York City board of education had asked the justices to take the case after a lower court said that tuition reimbursement is available to the parents under the Individuals With Disabilities Act.

Lawyers for the boy’s parents said the special education program proposed by the public school system was inadequate to meet the child’s needs.

The parents say that under federal law, they may challenge inappropriate proposals and obtain reimbursement for the costs of placement in private school.

In arguments before the Supreme Court on Oct. 1, New York City’s top appeals lawyer argued that when a school district says it has a good program for special ed students, the law requires parents to enroll their children in the program before transferring to private school and seeking reimbursement.

I understand the rationale for this last statement—–but as a parent, I would find it very difficult to enroll my child in a public school program that I know is inappropriate, and have to in effect wait for him to fail, and only then seek a private placement. My first priority is my son’s education, first of all.

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    • http://thomaspages.org/bloggg Moi ;)

      All I can say is that if you live in an area where there are good private schools for kids like ours, you are darn lucky.

      There aren’t any within 2 hours of here.

    • http://thomaspages.org/bloggg Moi ;)

      BTW – ALL public schools are inappropriate. Have you ever seen one that isn’t?

    • http://www.autismvox.com Kristina Chew, PhD

      I guess some come close in some areas, but never in all.

    • KimJ

      I think it’s disingenious to get the district to pay for your private school tuition if you weren’t enrolled in the first place. It sounds as if the child would have been in private schools regardless of his abilities.

    • http://www.autismvox.com Kristina Chew, PhD

      One thing I hope for from this decision is that public schools might see it as a wake-up call and make real efforts to improve their programs, even if only in partial ways.

    • http://crimsonthoughts.spaces.live.com/ Cliff

      I’d hope so, but perhaps that is just a tad optimistic, given how often those things seem to be currently ignored by the larger school district. Who knows, though?


    • volunteer librarian

      The US Government has been tacitly endorsing discrimination against children with learning disabilities for decades upon decades. Justice prevailed, in this case, but it’s only because the suit was brought by someone wealthy enough to take it to the mat. I thank Tom Freston for this and I hope to follow suit (no pun intended) in another jurisdiction soon.

    • Caroline L.

      I hope that Mr. Freston will use this victory as a platform to advocate for vast improvements in education and transition/adult real world work for people with all disabilities, not just LD.

      The autism/special needs community put in considerable effort and clout to help his case.

      What more noble cause could there be than to advocate for better education and opportunities for those who sometimes have difficulty advocating for themselves?

      I suggest reading ‘Reasonable People’ as a primer for the cause. :)

    • volunteer librarian

      I agree with you completely Caroline.

    • http://thomaspages.org/bloggg Moi ;)

      Kristina, public schools will NEVER ante up unless forced. They don’t have the money and won’t until the government gets rid of NCLB.

    • http://thomaspages.org/bloggg Moi ;)

      As for Mr. Freston, I would hope that he would go out and platform on this. But I wouldn’t hold my breath. You’d have heard something by now.

    • http://www.autismvox.com Kristina Chew, PhD

      I’m glad to be optimistic and keep putting on the pressure in ways local and legislative.

    • Caroline L.

      Thank you, Volunteer! I hope the Frestons and their friends agree as well.

      I have commented here before, but must say so again, that my family has experienced a public education inclusion program working beautifully, for a time. It really was like Heaven on earth. But, there was a lack of properly trained staff and things fell apart.

    • Regan

      I concur with Caroline and Volunteer Librarian…hope ain’t gonna cut it.

      Mr. Freston has taken criticism because of his wealth, but given his relative income and the stated cost of the tuition, I suspect that taking the case all the way to the Supreme Court was in aid of a larger message.

      Here’s a question that I asked elsewhere and maybe I’ll have to wait for the Wrightslaw analysis. My understanding is that the case/decision does not represent something with Federal standing, but does uphold a lower court ruling more strictly applicable to NYC.

    • http://www.autismvox.com Kristina Chew, PhD

      From WSVN (30 sept) (not that this may answer your question):

      The issue before the Supreme Court has nothing to do with the family’s wealth, or the morality of a millionaire asking a cash-strapped school district for help with an ivy league-sized tuition bill.

      Instead, New York City is arguing a technicality. It says that, under federal law, special education tuition aid is only available to children who actually enroll in public schools — not to lifelong private-schoolers who have never used the public system.

      Attorneys for Freston and several advocacy groups say federal rules don’t require such an enrollment.

      “The danger of making parents try out the school district’s program first, even if it’s not an appropriate program, is that students who need early intervention waste critical time,” said Gary Mayerson, a lawyer who works with the group Autism Speaks.

      “If my child can’t swim, and the school district’s plan is to throw him in the deep end of the pool, I shouldn’t have to allow my child to drown to prove that the district’s plan is ridiculous.”

      Leonard Koerner, chief appeals lawyer for New York City, said parents should be required to give the public system a shot, even if only a brief one, before they can appeal for an outside placement.

      An attorney for New York’s Education Department, Michael Best, said a court victory for the city would ensure that taxpayers don’t pay private school tuition for parents “who never had any intention of enrolling their child in the public schools.”

      From the Special Education Law Blog (the post is Oct 2; no post yet regarding today’s decision).

    • http://www.autismvox.com Kristina Chew, PhD

      Caroline L. “Heaven on earth” is a good way to put it when a placement actually works out—Charlie’s teachers and therapists at school continue to do things that show how attentive they are to him. For instance, his teacher emailed me about how she notices something I have noted—-Charlie gets anxious around 2pm, perhaps because he knows the school day is just about over, he’s feeling more tired and sleepy and hungry and just wants to go. His teacher noted that she has redone his schedule from 2-3 so it has a high rate of reinforcement—-he has been on half-days this week and home at 1.15, but, bingo, at 2pm he started to get really anxious and yell out of the blue (after being happy the moment before). I’m looking forward to seeing how the new schedule works next week.

    • volunteer librarian

      Regan: Here’s the reply I got from a source regarding your query:

      “[The] point is valid–however once the SC sets precedent, it does two things. It sends the message that they have established, at the highest level, what they feel the ruling would be and also makes it clear that they will hear such cases. They could have sent it back to the NY court without issuing an opinion. Instead they made a ruling. Any district that chooses to take this on will have to consider that when they take a position.”

    • Caroline L.

      Kristina, that wonderful level of detail is so critical to educating children, tweens, teens and providing on-going support for adults.

      It does take time and training (money) but also it takes a certain type of individual teacher who really thrives on helping people navigate through their lives with the challenges they may have.
      Like I have said here before, special education and society at large needs a simple attitude adjustment…that everyone has value.

      Back to the Frestons using the decision to advocate for improvements in public education for those with special needs, I assume this is only the first step, otherwise why go through it since they can afford to pay privately several times over I am sure. Going through due process alone is no picnic.

    • http://parents.com/autismville Autismville

      I love the Mayerson analogy of drowning in the deep end of the pool. If you live in a red state, you’d better put on your life jacket. (I’m a Texas girl, so unfortunately I’ve experienced the blatant violation of IDEA related to my son firsthand. Don’t get me started…)

      I’m grateful to Mr. Freston for staying the course … not for his own benefit … but to shake up the system a bit. I know this doesn’t set precedent. But it’s a step in the right direction.

      Peace and love,


    • http://www.unclesamscabin.blogspot.com Samantha

      Hi Judith,

      This case came out of New York City. That’s as blue a place as it can get. Red, blue or purple state, you need a life jacket.

    • http://www.autismvox.com Kristina Chew, PhD

      From Wrightslaw:

      On Wednesday, October 10, the United States Supreme Court issued a decision in this case. Justice Kennedy, author of the pro-parent decision in Winkelman v. Parma, recused himself. The decision was split, 4-4.

      What does this decision mean to you?

      The favorable decision on behalf of the parents and child stands for families who live in the Second Circuit – Connecticut, New York, and Vermont.
      However, the failure of the Supreme Court to issue a definitive ruling on this issue means that the case has no precedential value beyond the 2nd Circuit.

      The decision is, in essence, a nullity, i.e., the case never went beyond the 2nd Circuit.

      You can read the decision in Tom F. at:


    • volunteer librarian

      BTW, I forgot to mention the source I quoted yesterday is a constitutional lawyer.

    • volunteer librarian

      One addition: What was also [essentially] stated by same lwyr is, “legally it has little standing as a precedent, but intellectually it establishes (a) that they will hear these types of cases and (b) that should they hear them, they will be leaning in this direction.” (excuse any errors; went from voice to blackberry to transcribing, etc,)

    • Regan

      Volunteer Librarian and Kristina–
      Thanks for the update on what this means to the larger picture–very appreciated!

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