The cost of delaying a special education

In a highly anticipated ruling, the Supreme Court has ruled that parents of special needs children in private schools can seek tuition reimbursement from their public school districts if the student never received or was even offered a "free appropriate public education," commonly referred to as FAPE.

It is a growing trend called unilateral placement and one that advocates on both sides agree will cost cash-strapped districts millions of dollars. Our cover story on special education titled "Isn't every child special?" in the most recent CommonWealth highlighted the contentious issue and how it is dividing parents seeking the best education for their children and school administrators trying to stretch their tightening dollars.

In its 6-3 decision in Forest Grove School District v T.A., the court ruled that the parents of an Oregon student could be reimbursed for placing their son in a private school after they had a private evaluation that determined the boy suffered from several learning disabilities that the school districts' professionals did not see.

The focus of the ruling turned on the clause inserted by Congress in its 1997 reauthorization of the Individuals with Disabilities Education Act (IDEA). Lawmakers said districts had to reimburse private school tuition for students who "previously received special education and related services." Many districts took that to mean that only those students who went through the process of receiving Individual Education Plans (IEP) for their diagnosed disabilities.

Parents argued that clause gave school districts unchecked authority. In the case of T.A., he went through Forest Grove schools from kindergarten through his sophomore year in high school without special education assistance because the district never found a learning disability. It was only after a private specialist determined that the boy had ADHD and other impairments did the parents place him in a private school and then seek to recover the cost. They argued they should not be penalized for Forest Grove's inadequate response to their child's needs and the court agreed.

"The clause says nothing about the availability of reimbursement when a school district fails to provide a FAPE," Justice John Paul Stevens wrote for the majority. "Indeed, its statement that reimbursement is not authorized when a school district provides a FAPE could be read to indicate that reimbursement is authorized when a school district does not fulfill that obligation.

"A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress' acknowledgment of the paramount importance of properly identifying each child eligible for services."

The decision is likely to trigger a wave of parents seeking private special education schools for their children, with many taking the course of unilateral placements, to try to garner the best education services for their kids as regular education programs get sliced in budget reductions. That, in turn, will put even more pressure on local districts to find savings and revenues to absorb the likely increase in the spiraling special education entitlement costs.

About 90,000 special education students in the United States attend private schools at a cost to taxpayers of about $5.3 billion. Here in Massachusetts, according to our research, private tuition accounts for more than $436 million of the nearly $2 billion spent on special education annually. That places us third in the nation for total dollars spent, behind only California and New Jersey.

In Massachusetts, the average private school day placement costs about $59,500, roughly five times the cost of teaching a special education child in a public classroom. More affluent communities, where parents have the resources and are more likely to go the unilateral placement route, spend on average nearly twice as much per pupil on private tuition than poorer ones.

Retiring Justice David Souter, who was joined in his dissent by Justices Antonin Scalia and Clarence Thomas, says the majority ruling will open the floodgates for parents seeking private placements and put an onerous burden on already stressed systems.

"To start with the costs, special education can be immensely expensive, amounting to tens of billions of dollars annually and as much as 20% of public schools' general operating budgets," Souter writes. "The more private placement there is, the higher the special education bill, a fact that lends urgency to the IDEA's mandate of a collaborative process in which an IEP is 'developed jointly by a school official qualified in special education, the child's teacher, the parents or guardian, and, where appropriate, the child.'"

But advocates say there are sufficient safeguards so that a tsunami of unilateral placements in private schools will not overwhelm budgets. More to the point, they say, this gives parents another arrow in their quiver to ensure their special needs children will not be held hostage by budget-wary bean counters. They said too often, delayed decisions in the name of fiscal restraint cause damage that cannot be undone. Early intervention and appropriate special education is essential in helping a child achieve success in school, they say.

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

In an amicus brief filed in support of T.A.'s parents, the advocacy group Autism Speaks quoted Ralph Waldo Emerson to illustrate its point: "We learn geology the morning after the earthquake, on ghastly diagrams of cloven mountains, up-heaved plains, and the dry bed of the sea."

"The damage to the child’s development if this opportunity is not seized with appropriate and effective programming can never be undone in many cases, so when educational bureaucracies dither or delay or place a child in an inappropriate program, the time lost can mean a life wasted — for the sake of the affected child and his or her family, parents and educators cannot afford to learn geology the morning after the earthquake," the group's brief states. "There are no second chances."