At your school board’s first meeting of the New Year, you anticipate a discussion of your district’s financial woes. You arrive at the meeting and, to your surprise, it is not the school business official who looks the most haggard. The pupil personnel director, ordinarily peppy, looks frazzled and just plain worn out. You ask her, “What’s the matter?” She sighs and she tells you to expect parents to bring up some special education concerns during the public participation portion of the board meeting.
As predicted, the board gets an earful. One parent demands that the board guarantee that all school buildings in the district be allergen-free zones. Another asks for permission to have a behavioral consultant attend school with her daughter for a week to prepare an evaluation to be shared with the Committee on Special Education. The next speaker, a parent who has unilaterally placed her child in a private school and is seeking tuition reimbursement, begins to review, in excruciating and intimate detail, the nature of her son’s learning and psychological problems. The board president interrupts, saying something about a need to maintain confidentiality. The parent angrily replies, “It’s my child, and I have the right to talk about him.” You wonder, “Can that be right?”
Issues involving special education often become sources of tension between parents and districts, and sometimes lawsuits. Here are answers to five common questions that arise involving students with disabilities.
1. What’s confidential in a public meeting?
Does a parent have a right to speak about his or her child’s disability during the public participation portion of a school board meeting? Pursuant to applicable federal and state laws, the facts and circumstances surrounding a student’s disability or their classification as a special education student must be treated by school officials as confidential. Accordingly, certain information should not be revealed or discussed in public. On the other hand, a parent does have the legal right to waive this confidentiality on behalf of their child. (Such a waiver, if desired by the parent, should be obtained in writing.) But the answer here is that the school board decides what’s permissible during a public meeting.
2. When is a student entitled to private school tuition reimbursement?
The U.S. Supreme Court has held that under certain circumstances, public school districts are obligated to reimburse parents for the tuition incurred in the parents’ unilateral placement of the student in a private school. Three conditions must be met:
- The school district has failed to provide a student with a free appropriate public education (FAPE) in the least restrictive environment that is appropriate to meet the student’s needs.
- The private school that the parent unilaterally selected is appropriate to meet the student’s special education needs.
- The private placement would be equitable based on the degree to which the parent cooperated with the district in evaluating the student and trying to develop an individualized education plan (IEP) that provides the student with FAPE.
It has become rare for courts to automatically equate inadvertent procedural errors with a denial of FAPE. Some evidence that the procedural defect had an adverse effect on the parents’ participation and input in the CSE process is now required before an IEP will be invalidated on procedural grounds. Also, the third prong of the test is beginning to have greater meaning as courts are drastically reducing tuition reimbursement or barring it all together if parents have been uncooperative or sabotaged the IEP process. Be sure to document items such as refusals to attend BOCES screenings and evidence that the parents were not forthcoming about what services they want for fear that the district might just provide it, ruining their plan to pursue private placement. Lastly, the courts have begun applying least restrictive environment standards to parentally selected private schools, increasingly denying reimbursement where the private school selected by the parent is found to be too restrictive of mainstreaming opportunities.
3. Why isn’t (fill in the blank) in the IEP?
Increasingly, parents are requesting that school boards pay for exotic or untested services, sometimes with the explanation that other districts pay for such services. Such programs may provide some ancillary benefit to the student but often they are not sufficiently tied to the student’s educational program so as to warrant inclusion in the IEP. An example would be equestrian therapy, in which cognitively disabled students, particularly students on the autism spectrum, learn to ride, groom and generally work with horses at a recreational facility that has stables and equestrian equipment. While there is literature that shows such recreational activity is positive for the students, it is not a special education program or service within the definition of the regulations of the state commissioner of education.
4. Must we create/guarantee an allergenfree environment?
The parents of students with food and other allergies are increasingly demanding that districts ensure that their children not be exposed to allergens on campus. In a case coming out of Indiana, the parents of a student with a severe “perfume” allergy sought a school policy banning the spraying of all fragrances on school grounds. A federal trial court rejected this claim holding that such an approach was not a reasonable accommodation pursuant to Section 504 of the Rehabilitation Act, a federal antidiscrimination law.
More common allergies involve nuts or animals. When such allergies are known, should districts promise to provide an allergen-free school environment in a student’s IEP or Section 504 Plan? No, because such pledges cannot be kept. Furthermore, there is no legal requirement to provide allergen-free campuses. Rather, the law says districts must take reasonable steps to minimize the student’s chance of exposure to allergens and have a health plan in place to respond should the student be accidentally exposed and have an allergic reaction. Reasonable accommodations should be included in a student’s IEP or 504 plan as appropriate. These include prohibiting certain foods or items in the classroom, requiring students to wash their hands after coming in contact with an allergen and authorizing the use of an EpiPen in the case of an accidental exposure.
5. What about parents or others observing classrooms?
Some districts have prohibited observers from classrooms, asserting that allowing the parent or the parent’s consultant to sit in on the class would be a violation of the other students’ rights pursuant to the U.S. Family Educational Rights and Privacy Act (FERPA). Such an assertion, however, is erroneous. In a Dec. 8, 2003 letter, the Office of Innovation and Improvement of the U.S. Department of Education (DOE) opined that “FERPA does not specifically prohibit a parent or professional working with the parent from observing the parent’s child in the classroom.” Almost a decade later, no court ruling has contradicted this because FERPA is silent regarding classroom observations. FERPA generally only prohibits disclosure of educational records or information on a student’s educational record.
Equally inaccurate are claims that the U.S. Individuals with Disabilities Education Act (IDEA) guarantees parents the right to observe their children in the classroom. A letter dated May 26, 2004 issued by DOE’s Office of Special Education and Rehabilitative Services made clear that there is nothing in IDEA which guarantees the parent’s right to observe their child’s classroom or proposed placement options. However, DOE went on to point out that one of the key purposes of the IDEA was to strengthen and expand the role of parents in the identification, evaluation and educational placement of their children. It was suggested that districts work out appropriate policies that balance the goal of meaningful parental participation with the disruption to instructional services in the classroom. One suggested way to balance these interests would be to allow for a single opportunity to observe the classroom for a specified and limited amount of time. The district should also receive reasonable advance notice of the parent’s request visitation.
Laws and regulations governing special education are complex, and clarifications emerge routinely in DOE and SED, advisories, as well as court decisions. The wisest course of action is to consult with your own legal counsel as to how best deal with special education issues as they arise.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Robert H. Cohen of Lamb & Barnosky, LLP.