Holding the Torch

HOW TO MAKE YOUR VOICE HEARD TO PRESERVE EDUCATION QUALITY IN A TIME OF BUDGET CUTS

    Virginia legislators, like those in all other states, are facing serious and difficult choices this Fall regarding budget cuts to education services.  Although cut backs and budget deficits are the realities of the present day, it is always the most vulnerable in our society who stand to lose the most when education services are cut. When I hear the talk about proposed cuts in school budgets, many have suggested that support services are the place to look, “because school support staff don’t teach in the classroom”.  They are talking about school psychologists, social workers and guidance counselors; the very people who are critical to the coordination of educational services for children with special needs.  Failure to understand this is a mistake.

    There is no doubt that we are in tough times and that school boards will need to make difficult choices, but we can do this without jeopardizing the quality of education services for our special needs students.  If we cut off the help or close certain doors, our history in Virginia clearly shows us how difficult it is to get them reopened.

    Parents, educators, and child advocates need to be heard and legislators need to listen carefully in order to make creative and sustainable decisions about budget cuts in education services.  It’s time for the legislators to be educated and it is not a time for political gamesmanship or a “quick fix”.  I encourage all who care about the quality of Virginia’s schools to visit the website for the Alliance for Virginia’s Students to learn more about how to make your voice count.

CAN A PARENT'S INITIAL CONSENT BE USED BY THE SCHOOL DISTRICT TO DEFEND AGAINST THE PARENT'S LATER CHALLENGE TO A DEFECTIVE AND FAILED IEP?

In our work with parents involved in potential due process cases, we often see the situation where the school district attempts to resist accountability for a defective IEP on the basis that the parent “consented” to the IEP by signing the document.  When the IEP is later challenged in due process as defective or the school has failed to provide meaningful services, parents feel they are caught in a bind because signed off on the IEP.

 In the case of  G v. Fort Bragg dependent Schools , 343 Fed. 3rd. 295,309 (2003), the Fourth Circuit Court of Appeals rejected the school district’s argument that the parent’s consensual signing of the IEP prevents the parent from later challenging the sufficiency of services. In its opinion, the court noted, that “failure to object to a child’s placement does not deprive him of the right to an appropriate education.”

Parents have told us that school staff sometimes give them an ultimatum to “either sign the IEP, or the school cannot provide your child with any services”.  The parent is left feeling caught in a “take or leave it” situation, even when they have significant concerns about the proposed services for their child.

Although each case should be reviewed on its specific facts and circumstances, some suggested ways of dealing with this situation include:

• Parents should give the school staff all of their concerns about the proposed IEP in writing.

• If parents sign consent to implement an IEP, but have reservations, the signature page can reference the parent’s written concerns.

DOES THE NEW US SUPREME COURT RULING MAKE IT EASIER FOR PARENTS TO OBTAIN REIMBURSEMENT FOR PRIVATE SPECIAL EDUCATION PLACEMENTS?

     In the recently decided case Forest Grove School District v. T.A. , the U.S. Supreme Court held that  “ IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school .” Pp. 6-17.  The Court rejected the school district’s argument that the 1997 amendments to the IDEA require that a parent first place the child in a public school program before being eligible for reimbursement for a unilateral placement in a private school.

     We speak to many parents who are concerned that placement in an inadequate public school program is required before the school will consider funding a private placement for their child with special needs.  There is no such legal requirement.  However, the fundamental criteria for consideration of public funding for a private placement remain unchanged.  First, the evidence must show that the public school has failed to offer or provide a free appropriate public education program (FAPE).  Then, the parent must show that the alternative private placement is appropriate for the child.  The Court’s ruling in Forest Grove did not alter this evidentiary burden in private placement cases. 

     Consideration of whether a parent should unilaterally remove his child from public school and seek reimbursement for tuition is a serious and complex analysis.  The strength of the case is always fact specific and requires consideration of the school district’s responses to the unique needs for each child.  Parents are well advised to consult with experienced legal counsel or a special education advocate before making a unilateral removal of their child to a private placement for which they later seek tuition reimbursement.