R.E. v. New York City Department Of Education

Jun 18, 2024 | Blog

You may be familiar with R.E. v. New York City Department of Education from a previous post. Lately, school districts have been parading it around as if it were the talisman for anything and everything they are seeking to achieve at due process proceedings. They have argued that R.E. says that they no longer have to defend the public school placements that they have offered. That testimony about the specific school that was recommended is not relevant. That parents shouldn’t have a say in the decision-making process of choosing a specific public school anyway.

The main thrust of the R.E. decision is actually something different. The Second Circuit, in ruling on R.E., admonished against the use of retrospective testimony to prove the appropriateness of a placement, which means that testimony about information that was not made known to the parents at the time that they were making the placement decision cannot be used to prove the appropriateness of that public school. If a child has a seafood allergy, for example, and the recommended public school is not seafood free at the time of the parents’ visit, but the school principal testifies at a subsequent impartial hearing that changes would have been made to make it seafood free, that is an example of retrospective testimony that may not be used to prove the appropriateness of the public school placement. Similarly with related services, if an IEP fails to provide for specific services that a child requires, a school district cannot rehabilitate that deficiency in the IEP with testimony from public school personnel stating that those services would have been provided at the public school.

Recent federal court decisions demonstrate that R.E. does not stand for all of the propositions that school districts would like to believe it stands for. And why should it? If an IEP team agrees that a child requires a small, structured school environment, how could a school district take the position that it does not have to present any testimony regarding the recommended public school to prove that, in fact, the public school offers a small school environment? But this is how school districts have been operating. And in a place like New York City where the Department of Education seems to have “categories” into which it places students (or “buckets” as I once heard a colleague articulate it) rather than investing the time and resources to make more individualized recommendations that take into account the child’s unique needs, these problems can become even more pernicious.

School districts have a tendency to think with their purses. It is perhaps understandable, but by no means justifiable, that a school district might make important decisions about a child’s education based on the resources it has available and not based on the individual needs of that child regardless of cost. U.S. Supreme Court Justice Ruth Bader Ginsburg has previously recognized that “school districts striving to balance their budgets, if left to their own devices, will favor educational options that enable them to conserve resources.” It is now well-established, however, that a school district’s obligation is to provide children with disabilities with interventions and supports according to the unique needs of those children, and not based on administrative convenience or what resources the school district has available.

In the course of its decision, the Second Circuit did state that a school district “may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP.” What exactly that means may be open to interpretation. It is not clear to me why it would make sense for a school district to choose a public school without giving the parents an opportunity to voice their opinion and/or concerns about that public school. With respect to that narrow issue relating to parental involvement, an appeal is being sought from the Second Circuit’s opinion. Therefore the case may be heard by the United States Supreme Court if a writ of certiorari is granted, in which case Justice Ginsburg would have another opportunity to chime in on the questionable practices and purported policies of cash-strapped school districts.