Tuesday, March 9, 2010


NYLJ 6-04-07


3. In the broad scope of what is the role of the government in public education, when does a student’s social anxiety disease and depression necessitate his placement in a private school? Moreover, exactly who decides where, and if there is a disagreement between, say, the parents and an Impartial Hearing Officer, is the state still responsible for the costs of his tuition, when the parents chose not to follow those recommendations?

As “Education Presidents” come and go, and teachers end up at the bottom of the food chain of goverbucks, this will never be more than the most personal of issues in open debate, and the last to be resolved. So it is no wonder that it comes down to an administrative finding to bring a federal Appellate Court to reverse the SDNY judge’s verdict overriding the IHO decision.

Like most such rulings, it often comes down to the seated SDNY robe not standing up to the take the US Supreme Court book of School Committee of the Town of Burlington v. Department of Education, 471 US 359 (1985) down off the shelf. But the CoA, 2nd Circuit did. And what was found was “the question of whether the parents carried their burden of demonstrating that the choice was inappropriate was a close one.”

Odd construction, but the Burlington case precluded that question and “easily disposed of” the matter in the second part of the 2-part test: Whether the private placement was appropriate to the child’s needs. The judge cautioned that the job of the district court’s independent review is NOT an invitation to substitute its own notions for that of the school system’s. That the IHO officer had come to his conclusions after reviewing the same evidence pretty much proved they weren’t operating under the same criteria. “The district court grounds for disturbing the IHO’s reasoned conclusions are NOT SUPPORTED by the record. …[and] ignored the substance of the recommendations” offered by a psychiatrist who examined the boy.

The chosen school had a staff trained in dealing with anxiety disorder—something the other school could not offer. Even though the boy had shown no progress in the IHO-preferred school, it had no bearing on the issue… (About the same as saying the troop surge in Iraq justified the invasion because it was bringing peace and stability. Which ignores the obvious—any change would be likely to be an improvement on a bad situation.) “A unilateral private placement is only appropriate if it provides educational instruction specifically designed to meet the unique needs of a handicapped child.”

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