In Their Own Words: Supreme Court Gives Schools Too Much Credit
By Gary Mayerson and Alison Singer
Editor's note: The opinions expressed herein are those of the authors exclusively.
By Gary Mayerson and Alison Singer
Editor's note: The opinions expressed herein are those of the authors exclusively.
This week, we had the opportunity to attend the Supreme Court hearing of the New York City Board of Education v Tom F case. Because the issues presented in Tom F will have repercussions for all families raising children with disabilities, Autism Speaks filed an amicus brief, through our Federal Legal Appeals Project (FLAP), urging the court to protect the educational rights of children with autism.
The issues in this case involve whether or not a child with a disability must “try out” an educational placement recommended by the public school district before his parents even have standing to challenge that placement as inappropriate. If the court overturns the previous decision in this case, parents will lose the right to sue their district to cover the cost of a private school placement unless the child first “tries out” the placement recommended by the district. For children with autism, this could mean that critical early intervention opportunities in an appropriate setting would be lost.
We do not know yet how the court will rule in this case. But some things were clear from the oral arguments. Unfortunately, the court, as it did in Schaeffer v Weast, seemed to assume that a school district would always act in good faith when designing a child's IEP. Missing from the oral argument was any discussion from either side as to the kinds of real-life situations that occur time and again in New York City and in districts around the country; the situation where, after convening an IEP meeting, the district fails to even generate an IEP in time for the start of the school year; the situation where a child classified with autism is recommended for a program that is designed for the emotionally disturbed; the situation where, despite multiple parental requests, the district fails to even convene an IEP meeting; the situation where a child with a disability who is succeeding in a mainstream preschool setting is confronted with an IEP recommending a far more restrictive, self-contained classroom in kindergarten.
The New York City Department of Education's counsel likely succeeded in persuading at least some members of the court that no one should fear situations like these, situations many families living with autism have faced. The NYCDOE suggested that if it was not able to meet a child's needs, it would pay for the parents' chosen program. But in reality the NYCDOE often cannot meet the child's needs AND refuses to pay for the child's chosen educational program. Sometimes the excuse is that the placement is not formally “approved” or on the city's list. Sometimes, the excuse is cost. Other times, the excuse is “least restrictive environment.”
Ostensibly, one of the reasons that the Second Circuit Court of Appeals originally ruled against the school district is because that court operates in New York City, and is well aware that in urban environments like NYC, there are many more demonstrably inappropriate IEP situations than might be expected in a suburban school system. This is an unfortunate reality that parents in New York City and other areas face daily.
Based on comments from Justice Antonin Scalia, it is clear that the true issues of Tom F. have been clouded by the fact that Tom F. is a father of significant financial means who easily could afford to pay for private school. Justice Scalia several times commented that “parents who sue would have sent their children to private school in any event.” Yet, despite the wealth of this plaintiff and the distraction that his wealth proved to be in the oral arguments, the fact is that the decision in this case will affect all families in the nation. As we all know, the majority of families living with autism are middle class and not of "significant financial means." Each year, the NYC Impartial Hearing Office processes more than five thousand claims. It is safe to say that most of these filings do not involve wealthy parents, but rather parents who are being drained of what little financial resources they may have. And, for those families where autism is a factor, that problem is only magnified. Parents of children with autism normally do not have the luxury of seeking out tony private schools on Park Avenue. Parents of children with autism who are not receiving a fair and appropriate public education (FAPE) within the school system are left with no choice but to look outside of the system to cobble together an appropriate program. It is significant to note that in a city of some 8 million people, New York City has only one school that offers an intensive 1:1 ABA program for children with autism. It is no wonder then, that so many families constantly feel at the end of their rope.
It is sad that rather than investing money and personnel to improve its educational offerings, New York City is expending so much effort trying to gain an unfair advantage to try to keep families from even trying to prove the obvious, which is that New York City fails many families of children with autism. Hopefully, the high court will see through the smokescreens and apply logic and old fashioned common sense.
Gary Mayerson is founding partner of Mayerson and Associates and a member of the Autism Speaks board of directors. He is director of Autism Speaks Federal Legal Appeals Project. Alison Singer is Executive Vice President of Autism Speaks.
The issues in this case involve whether or not a child with a disability must “try out” an educational placement recommended by the public school district before his parents even have standing to challenge that placement as inappropriate. If the court overturns the previous decision in this case, parents will lose the right to sue their district to cover the cost of a private school placement unless the child first “tries out” the placement recommended by the district. For children with autism, this could mean that critical early intervention opportunities in an appropriate setting would be lost.
We do not know yet how the court will rule in this case. But some things were clear from the oral arguments. Unfortunately, the court, as it did in Schaeffer v Weast, seemed to assume that a school district would always act in good faith when designing a child's IEP. Missing from the oral argument was any discussion from either side as to the kinds of real-life situations that occur time and again in New York City and in districts around the country; the situation where, after convening an IEP meeting, the district fails to even generate an IEP in time for the start of the school year; the situation where a child classified with autism is recommended for a program that is designed for the emotionally disturbed; the situation where, despite multiple parental requests, the district fails to even convene an IEP meeting; the situation where a child with a disability who is succeeding in a mainstream preschool setting is confronted with an IEP recommending a far more restrictive, self-contained classroom in kindergarten.
The New York City Department of Education's counsel likely succeeded in persuading at least some members of the court that no one should fear situations like these, situations many families living with autism have faced. The NYCDOE suggested that if it was not able to meet a child's needs, it would pay for the parents' chosen program. But in reality the NYCDOE often cannot meet the child's needs AND refuses to pay for the child's chosen educational program. Sometimes the excuse is that the placement is not formally “approved” or on the city's list. Sometimes, the excuse is cost. Other times, the excuse is “least restrictive environment.”
Ostensibly, one of the reasons that the Second Circuit Court of Appeals originally ruled against the school district is because that court operates in New York City, and is well aware that in urban environments like NYC, there are many more demonstrably inappropriate IEP situations than might be expected in a suburban school system. This is an unfortunate reality that parents in New York City and other areas face daily.
Based on comments from Justice Antonin Scalia, it is clear that the true issues of Tom F. have been clouded by the fact that Tom F. is a father of significant financial means who easily could afford to pay for private school. Justice Scalia several times commented that “parents who sue would have sent their children to private school in any event.” Yet, despite the wealth of this plaintiff and the distraction that his wealth proved to be in the oral arguments, the fact is that the decision in this case will affect all families in the nation. As we all know, the majority of families living with autism are middle class and not of "significant financial means." Each year, the NYC Impartial Hearing Office processes more than five thousand claims. It is safe to say that most of these filings do not involve wealthy parents, but rather parents who are being drained of what little financial resources they may have. And, for those families where autism is a factor, that problem is only magnified. Parents of children with autism normally do not have the luxury of seeking out tony private schools on Park Avenue. Parents of children with autism who are not receiving a fair and appropriate public education (FAPE) within the school system are left with no choice but to look outside of the system to cobble together an appropriate program. It is significant to note that in a city of some 8 million people, New York City has only one school that offers an intensive 1:1 ABA program for children with autism. It is no wonder then, that so many families constantly feel at the end of their rope.
It is sad that rather than investing money and personnel to improve its educational offerings, New York City is expending so much effort trying to gain an unfair advantage to try to keep families from even trying to prove the obvious, which is that New York City fails many families of children with autism. Hopefully, the high court will see through the smokescreens and apply logic and old fashioned common sense.
Gary Mayerson is founding partner of Mayerson and Associates and a member of the Autism Speaks board of directors. He is director of Autism Speaks Federal Legal Appeals Project. Alison Singer is Executive Vice President of Autism Speaks.
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