Reply to SCOTUS Grants Review in IEP Case

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]I think the posture of this case (a parent trying to get reimbursed for private placement) is unfortunate.  The court is more likely to reject an interpretation that is perceived to impose a requirement to make a private placements because that will be seen as more expensive, and more subject to parental wrongdoing (eg parents just want the private school.)  I wish the posture had to do with a student request a specific program INSIDE a school.  [/quote]

I don't think it's unfortunate.  The law provides for private placements when a school system cannot meet that child's needs.  If schools (especially wealthy school systems like MOCO) actually provided services that were effective and kids were making progress, private placements would be a non-issue.  A favorable ruling from the Supreme Court (a big if) really would up the ante on public school systems and force them to start doing things differently -- or indeed face potential increased private placements.

The Solicitor General's brief on behalf of the federal government was really strong.  It noted, among other things, that no one would think a public school system was doing a competent, let alone a good, job if all it aimed for was for kids in general education to achieve something more than just minimal progress.  [/quote]

My point is that the factual posture might impact the decision in an unfortunate way; not that I disagree with the merits.  The justices may perceive  ruling for the plaintiffs as greatly increasing costs to school districts and allowing families to "opt out" of public schools.  If it had been a case where the remedy would be improving services in the public school, instead of paying private tuition, that might be an easier case to win well. [/quote]

I understand the fear but, practically, it is very difficult to obtain a private placement.  What usually happens is that parents make the decision to go private.  There has to be a very clear record of public school failure to have any chance of funding.  Few families want to "opt out" of public schools -  they're effectively driven out by the lack of effective services.  When you read the posts on this board, you get a sense of the problem.  Wealthy school districts like MOCO do all they can to deny or drag out eligibility in many cases and then, even if a student has an IEP, the services sometimes are ineffective.  A district like MOCO can hide behind the low standard of FAPE currently in place.  The current standard of FAPE is out of date.  So much more is known about how to effectively educate students with disabilities, be it ASD, dyslexia, or something else.  The standards need to catch up to current research.[/quote]

I don't think you understand what I'm saying.  I'm not making a legal or policy argument.  I'm saying that the school district will stand up in court and say "it will cost us millions to have to pay for their private school!"  and that is not the best set of facts for this legal question to arise.  The identical legal question could have arisen with better facts.  Not that I'm really questioning the decision to take this particular case to the Supreme Court - I just wish there were different facts.  [/quote]

The court would never even entertain this type of argument. Anyone who has practiced long enough and has the qualifications to practice before the SCt is not even going to raise the issue of cost. [/quote]

That's not what I'm saying.  What I'm saying is that the facts shape the legal reasoning.  The school district is not going to say "we're exempt from IDEA because it's expensive."  That's not a legal argument.  They WILL find a way to highlight how expensive this is and the fact that the parents seem to be trying to game the system by going private.  The facts very much shape the legal decisions.  The supreme court justices will care very much about the potential impact of their decision, and they will tailor the scope of their decision accordingly (even if they don't state it in so many words).  In other words, if they see their decision as potentially imposing a huge new financial cost on school districts every where (because the plaintiffs' remedy is a lot of $$ in this case), that will in turn affect how broadly they are willing to define "appropriate education."[/quote]

I think PP understands your concern, but there are lots of ways for the court to get around the cost issue. They could, for example, say an SN child is entitled to the higher standard, but the parents were wrong to place their child in private school because the public school met the standard.  They could also say that the public school should have had better public options in place so there would be no need for a private placement. [/quote]

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