Forest Grove Decided…and The Spin Begins

Published on June 22, 2009 by Jennifer Laviano

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Today was a great day for children with special needs.  The United States Supreme Court issued a Decision in the case of Forest Grove School District v. T.A.  In the Ruling, the Court found in a 6-3 Opinion that parents of a child with a disability who are forced to fund a private school in the absence of their school district offering an appropriate special education program are entitled to reimbursement of that private placement, even if the student had never previously received special education services from the school district.

T.A.’s story is one I have heard many times in my Connecticut special education law practice.

The record in the Forest Grove case is strikingly familiar to me.  The record indicates T.A.’s long history with attention and learning difficulties in school.  When the parents became increasingly concerned about his educational program, the school did conduct an evaluation, but they did not evaluate him in all areas of suspected disability as required by law (like ADHD, which ultimately was discovered as one of his key diagnoses).  The IEP Team did not find him eligible.  By the time high school came around, what were once questions were becoming crises, and yet the district continued to maintain that T.A. was not a student with special education needs.  His parents finally had to locate and fund an appropriate therapeutic placement for him while exercising their legal rights under the IDEA to challenge the school district’s refusal to offer their son special education services.

Forest Grove is a rebuke to the notion that private school reimbursement is only authorized if the student has been identified as eligible for an IEP by the very school district accused of violating the IDEA.

The high court has previously ruled that children whose IEPs were found to be inappropriate were entitled to private placement reimbursement if the district did not offer a Free and Appropriate Public Education (“FAPE”) and the private school was believed to be appropriate to meet the student’s special education needs.  In Forest Grove, however, T.A. had attended the public schools throughout his education, but he had never been found eligible for an IEP.

Excluding from private school reimbursement those students who have been inappropriately overlooked for identification under the IDEA would create an incentive for school districts not to identify students for services.

Those of us who have been following this case have been very concerned about the ramifications of a Decision that allowed schools to discharge any obligations for reimbursement merely by not finding students eligible for services.  To many of us, this had the potential for an open invitation to school districts to deny services, thereby insulating themselves from claims for private placement reimbursement.

Therefore, when I returned to my law office this afternoon after a day of IEP meetings, I let out a shriek of happiness when I checked my email and saw that the parents had prevailed.  I was thrilled to read the Decision, and so proud of the members of the special education parents’ attorney community who had worked hard to make sure that this case came out the right way.  It was one of those “there IS justice in this world!” moments.

Tonight was the last evening that I thought I’d be writing a rant.  But then I watched the evening news.

The story I watched on the evening news tonight was not the tale of T.A., and his family, and the struggles they endured after years of watching their child deteriorate while their school district did little to help.  I did not hear how sad it was that this family should have to spend all of these years (the Due Process Hearing was commenced in 2003) to wait for justice.  No mention was made of how many years of T.A.’s education were lost, having waited until he was well into high school before he and his family discovered that he had disabilities which would have entitled him to services throughout his education.  No, that was not the story.

Instead, the coverage I heard focused overwhelmingly on one thing:  cost.

“The floodgates will open!  Parents of children with special education needs will be rushing to private schools by the thousands!  Armageddon will ensue!  Your tax dollars are in peril!”  This was the subtle, and sometimes overt, message about this case.  Times are tough, and now we have to spend all this money on “other people’s kids.”   Talk about a buzz kill.  There goes my evening of basking in the glow of justice.  Now I’m mad!

IF THE FOREST GROVE SCHOOL DISTRICT HAD MET THEIR LEGAL OBLIGATIONS UNDER THE IDEA IN THE FIRST PLACE, WE WOULDN’T BE IN THIS POSITION!

If proper evaluations had been performed on T.A. in elementary and middle school, as required by law, he likely would have been identified for an IEP.  Perhaps, then, instead of being a high school student spiraling out of control because he hasn’t received any intervention, T.A. would have entered high school with some skills and coping strategies.  But that’s not what happened, because the school district did not meet their legal obligations to properly evaluate, identify, and educate him.

Every time a school district is held accountable for violating the IDEA, the response is to  pit the parents of kids without disabilities up against the families whose children require special education services.

This happens all the time, and I, for one, am sick of it!  It’s not just when a landmark Supreme Court Ruling comes down.  It happens every time a budget is up for discussion, in small towns and large cities:  “well, if it weren’t for the special education budget…”  or “we would love to keep the Ski Team, BUT our special education costs have gone up astronomically.”

I have news for those that engage in this tactic:  properly identifying and educating children with disabilities is not just the law, and it is not just the right thing to do…it is also the fiscally sound thing to do!  Trust me, you spend it now or you spend it later.  If school districts could see past their anger about this case, they’d realize that it is the perfect example of WHY complying with the IDEA is cost effective.

If Forest Grove had properly identified T.A. for services as a young student, instead of neglecting his obvious needs, perhaps they would have a successful graduate of their high school on their hands.

Instead of six years of legal fees defending their inaction all the way to the Supreme Court.

2 Responses to Forest Grove Decided…and The Spin Begins

  1. Rochelle Dolim
    June 23rd, 2009 | 1:05 am

    In our case, the district did evaluations in kindergarten that clearly showed autism. The girls got a diagnosis three and a half years later only because we went through the private expense of seeking it ourselves.

  2. Rochelle Dolim
    June 25th, 2009 | 4:33 pm

    I should add that we were never told about these evaluations. In fact, when we asked for documentation that could be used for diagnosis, the school claimed there was none. All we were given was a sealed note from the teacher stating some, but not all, of the behaviors she’d observed.
    We found out about these evaluations 6 years after diagnosis when I did a visual review of the files. Two supposedly complete copies of the files that had been provided before that did not have these evaluations included.

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