Supreme Court Ruling Hailed as Victory for Special Education

High court ruling raises questions about who foots bill for private school.

Oct. 12, 2007 — -- In 1995, Gilbert Freston, a 5-year-old boy with attention deficit hyperactivity disorder, was enrolled at New York City's private Stephen Gaynor School where he could receive an education specially tailored to his needs.

His parents had decided the New York City Board of Education's proposal to place Gilbert in a city special education program was unsatisfactory.

Citing the Individuals With Disabilities Education Act, his parents sought reimbursement for the private tuition — $21,819 a year — from the board.

The backbone of the act is the principle that parents can seek reimbursement for private schools costs if the public school is unable to provide for the specialized needs of students.

But Gilbert's father, Tom Freston, is not your average father. He is one of the founders of MTV and the recently ousted Viacom CEO, who took a buyout of $84 million in 2006. The city denied the request for reimbursement, arguing that because Gilbert was never enrolled in its school system, the Frestons had never given public education a chance.

In a legal battle that went to the U.S. Supreme Court, Freston won his case this week, signaling a victory for special-needs parents everywhere, but posing the stickier ethical questions about whether public dollars should pay for private education.

On Wednesday, the Supreme Court affirmed an earlier ruling that even New York City's wealthiest power brokers are entitled to receive reimbursement for private tuition even if their children have never attended public school. As a divided ruling — 4-4 with Justice Anthony Kennedy recusing himself — legal experts say the decision will set no precedent, but special-education leaders say it could put the pressure on all public schools to do a better job.

The city's lawyers said they hope the Supreme Court will eventually decide the issue once and for all. "This detracts from schools' abilities to work with parents for the best possible educational outcomes for children with disabilities," said lead city counsel Leonard Koerner in a prepared statement.

Freston, who did not answer calls made by, has said in the past that the fight was about principle, not money, and that he would donate reimbursements to a special-education support center in a public school.

"We are pleased," Gilbert's mother, Margaret Badali, told "That's all we're going to say."

Victory for Parents

The National Association of Special Education Teachers hailed the ruling as victory for parents of the nation's more than 6 million special-education students — 9 percent of the overall student population. The ruling comes at a time when the classification of special-needs students is at an all-time high and when more parents are seeking private school alternatives for their children. An estimated 88,000 such students are educated privately at the public expense.

Public schools say their budgets are likely to suffer and some wonder whether places like New York City, where wealthy, competitive parents will do almost anything to give their child an academic edge, the ruling will embolden parents to seek private education for their children.

This week's ruling is the culmination of a decade-long fight for the Frestons.

According to published reports, the family sought special-education evaluations from the New York City Department of Education in 1997 and 1998. Each time the public schools came up with an individualized education plan, the family rejected it as inadequate and sued for an administrative hearing.

Both times the city settled and agreed to pay the tuition.

In 1999, after another evaluation, the city recommended that Gilbert be placed in a fourth-grade special-education class with 15 students and one teacher. Again, the family asked for a hearing. The Frestons won the first two legal rounds and a hearing before an appeals board, arguing the public school's plan was inadequate.

The city's Education Department took the case to the U.S. District Court in Manhattan, where a judge ruled the child could only receive reimbursement if the parents had first tried placing him in public schools. An appeals court later reversed that decision.

Landmark Education Act

Under a landmark 1975 special-education law, school systems must provide a "free appropriate" public education to disabled students.

Before 1975, special-needs students were separated out in poorly equipped classrooms and Congress deemed that children should be placed in the "least restrictive environment" among their nondisabled peers.

The intent of the law was to move toward what was then called "mainstreaming," or educating disabled children in regular classrooms with specialized team-teacher support to meet their needs.

Sending students to private schools that cater to special-needs children "goes against the principle of inclusion," according to George Giuliani, the director of the National Association of Special Education Teachers. He is not related to the GOP presidential hopeful and former New York City mayor. He said the court ruling will have a "huge impact" on school districts nationally.

"If you don't have programs, it's going to cost you a lot more money, so have it early on or you'll end up paying for it," he said.

"If I have a special-needs child, I expect my tax dollars to pay for him, not to be pushed aside," said Giuliani.

But Scott Gaynor, head of school where Gilbert attended until the age of 11, argues that the act "clearly provides for free and appropriate education for all children, regardless of where they go to school."

"If the academic needs of the child are not being met, who cares who his peers are, if he doesn't feel good about himself," said Gaynor.

His school serves children ages 5 to 14 with a "wide umbrella" of learning disabilities in class sizes between nine and 11 students. The typical New York City public school class has 25 or more students.

Half Receive Reimbursement

"It certainly benefits the families or our school," said Gaynor. About half of the families there receive tuition reimbursement.

Freston had argued that he had chosen the Gaynor School because initially the public schools could not provide a program to meet his son's unique needs. By the time the city produced a plan, it was too late.

"All research shows that the earlier you treat a disability, the earlier you can give services and the greater the probability of remediating," said Giuliani.

The number of special-education students in the United States has doubled — from about 3 million when the 1975 act was penned to 6 million today, representing about 9 percent of the general student population, according to the teachers organization.

New York City has felt the impact of that growth. The Education Department says it already pays the tuition for 7,000 students who are classified as special needs. Of those, about 148,000 are educated in what is called Collaborate Team-Teaching in regular classroom settings.

The requests for tuition reimbursement have doubled in the last five years, the city says. The city's education board says the average reimbursement is $27,000 for a single pupil, but can go as high as $230,000 — the current amount for one autistic student placed in a year-round facility.

The financial burden on the public schools systems is huge, but not their only concern, say education officials.

"The point is we could be using that money for special-needs services in our schools for our students," said one Education Department spokesman. "It's not only money, but the time associated [with legal challenges.] The teacher has to leave the classroom to make the case, and lawyers are involved."

The spokesman said some wealthy parents like Freston, who have no intention of sending their child to public school, can muster up the legal fees to sue the city for reimbursement.

"It comes down to who can afford it," she said. "Not all parents can afford the process."

'Wrong' to Get System to Pay

One affluent New York City mother turned down private-school offers to send her 5-year-old to the public schools this fall. Her son had been diagnosed with mild Asperger's Syndrome and is now thriving in a 12-child kindergarten class in the city's model Nest program for children with autism.

"We wanted our son to be in class with typically developing peers," rather than in a private special-needs school, she said. "It's a big decision to choose public over private school."

But the stay-at-home mother, who did not want her name used so as not to stigmatize her son, does not rule out eventually sending her son to private school.

"We can afford private education, but we feel it would be wrong to get the public system to pay for it," she said.

As the wife of a husband working in private equity, she knows many parents who would eagerly use their financial resources to take advantage of the reimbursement system.

"I'm sure there are neurologists who are very happy to give a child a diagnosis," she said. "There's a quiet industry out there already. Parents who are at all savvy go to one of the lawyers who specialize in taking on the board of education on behalf of their children. Private schools give out a list of lawyers. This sort of thing goes on all the time."

But special-education experts say it is exactly this tact that will hit public schools hard financially and eventually force them to do a better job of educating their special-needs students.

"It's a positive ruling for parents and, ultimately, in the big picture, for the school district," said Giuliani. "They might not feel this right now, but it's a win for all."

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