New York City challenges private placement of special education children
New York City, at the suggestion of private consultants, is significantly ramping up its effort to challenge cases in which it pays for private school tuition of children with disabilities whose parents say they are ill-served by the public schools. Consultants from the firm Alvarez and Marsal found that the city had lost “numerous” legal cases and “was forced to pay millions of dollars in private school tuition for students that could have been adequately served by our public school system,” not because of the cases’ merits but “due to staffing level deficiencies.” The city, the consultants wrote, has already acted on their advice, more than doubling the size of its special education legal team by adding five lawyers and a dozen paralegals. The effort, they estimated, will save the city $25 million a year in private school tuition. Advocates of special education criticized the move. “I don’t think they are paying private school tuition because they don’t have good lawyers,” said Kim Sweet, the executive director of Advocates for Children. “I think they lose these hearings because they don’t have good programs.” Federal law allows parents to seek public financing for private schools if they can show that the public schools cannot adequately serve their children.
The city’s payment of such tuition for special education students drew renewed attention earlier this year. The United States Supreme Court split evenly in a case about whether the city should reimburse the private school tuition that Tom Freston, the former chief executive of Viacom, paid for his learning-disabled son. The decision, in which one justice recused himself, left standing an appeals court ruling in favor of Mr. Freston. Michael Best, the Education Department’s general counsel, said that over the years, the numbers of these cases had increased substantially. As recently as three years ago, he said, the city made little effort to challenge them, sending nonlawyers to represent the department at hearings. But in the past couple of years, he said, the city created a unit of 10 lawyers, specifically to fight the cases. “In the past you’d have clinicians, social workers, whoever the system would send to handle these cases, and they weren’t lawyers, and there was an active plaintiffs’ bar on the other side that’s suing,” Mr. Best said. Last year, as a result of administrative or court rulings, the city spent $57 million to educate 3,675 special education children whose parents had rejected the public schools. Mr. Best said that the consultants’ estimate that $25 million could be saved sounds “reasonable,” but that it is difficult to say how much of that would be savings—and how much of it would simply chip away at the rate of growth. The report also advised the department to hire six “transportation liaisons” to ensure that only students who are truly in need of the more costly special education bus service receive it.
New York Times By Elissa Gootman
[Editor’s Note: The Legal Clips summary of the Supreme Court case, with links to related decisions and NSBA’s brief in support of the school district, is below. New York City’s school district also recently established a new in-house legal team to expedite dismissals of unsatisfactory teachers. An excerpt of the New York Times coverage is at the second link.]
NSBA School Law pages on Board of Educ. v. Tom F.
NSBA School Law pages on NYC’s Teacher Performance Unit