Adam Dayan, Esq.
A.R. v. New York City Department of Education
I saw the documentary Salinger recently so, as I'm writing this blog post, J.D. Salinger is fresh in my mind. There's something about that last scene in The Catcher In The Rye depicting children being saved just before falling off the edge of a cliff that has had a deep, visceral, and lasting impact on me. I think that profound scene can be related to the practice of special education law, which at times involves saving children with special needs from falling toward academic failure and developmental stagnation when they have been neglected by their local school districts. I think families who are the most needy - those who have children with special needs AND lack necessary financial means - require the most help because school districts can be especially difficult in these kinds of cases. The recent case of A.R. v. New York City Department of Education, 12 Civ. 4493 (PAC), is one example of our legal system upholding a child's rights in the face of a school district that would have preferred to let the child fall off the cliff.
On appeal, the Southern District of New York (SDNY) in A.R. considered a parent's claim for private school funding as a result of the district's conceded failure to provide an appropriate public school education. The school district admitted it didn't do its job, but still didn't want to pay for the kid's services. The Court addressed a number of issues, including whether a parent's financial need and inability to fund the cost of a private placement should bar an award of funding for the private program. Those familiar with this area of the law may recall the case of Mr. and Mrs. A. v. NYC Department of Education, where the SDNY considered this issue and determined that, where parents lack the financial resources to front the costs of private school tuition, parents who satisfy all other factors have a right to retroactive direct tuition payment relief.
In A.R., the school district argued that the parent obviously couldn't afford to front the cost of the tuition, that the parent never made any payments to the private placement, that the private school never demanded payment, that the private school waived its right to payment by failing to enforce the terms of the enrollment contract, and that the enrollment contract was a sham. The SDNY rejected all of these arguments. The SDNY affirmed the decision in Mr. and Mrs. A., quoting from that case and saying that "it would be a grave error to conclude from the fact that [the parent] did not have the means to pay for a private placement that her daughter is precluded from receiving the free appropriate public education that the IDEA is intended to guarantee." In A.R., the SDNY said that "[t]he fact that [the parent] ultimately expected to prevail in her claims against the DOE does not indicate that she believed that she had no obligation to pay under the contract." Therefore, the contract was not a sham. With respect to the district's assertion that the parent never intended to send her child to a public placement, the Court observed somewhat mockingly that "[t]he DOE pretends to have peered into the [the parent's] mind and ascertained that she 'never seriously considered sending the Student to a public placement," and pointed out that there is a difference between (1) wanting a private school and, at the same time, being open to public school recommendations if they are appropriate, and (2) not being open to public school recommendations at all. With respect to scenario (1), "[s]uch a view is entirely consistent with a permissible desire to keep the Student enrolled at the same school she had been attending . . . , but a willingness to consider other forthcoming proposals from the DOE," said the Court.
As a result, the parent's claim was upheld and the school district was ordered to fund the cost of the child's private placement.
So, although a child's IDEA-mandated rights are not always respected and enforced by local school districts, there is a legal system to which parents can appeal in order to ensure that their children receive the programs and services that they require to continue progressing and growing, and staying far away from the edge of that cliff.