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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: My question is how do I get the school district to pay for my learning disabled son to go to a private school, when he is not making progress at the school he is in?

    

Answer:  Under IDEA the public schools have an obligation to provide an eligible child with a free appropriate public education (FAPE).  If and only if, they cannot provide a FAPE will reimbursement for a private school placement become an issue.  As there is frequently a significant difference between what a public school receives in taxpayer dollars to educate each IDEA eligible student and what a private school charges in tuition and related expenses, public schools are understandably reluctant to willingly pay for a private placement.  In reaction to the public school’s concerns Congress has amended IDEA to make it difficult (but not impossible) for a parent to prevail on a claim for reimbursement for a private school placement.

 

If you review the federal court cases and the state’s due process hearing decisions I believe you will see that a majority of them deal with a parent’s request for reimbursement for a private placement.  When parents are successful, they have given the public school adequate notice in writing and generally before an IEP Team that it is their position that the public school is not providing their child a FAPE and their intent to remove their child from the public school and privately place their child.  This has to be done at least 10 business days before the child is removed.  In the 6th Circuit, while the same statutory requirements of free appropriate public education (FAPE) do not apply to private school placements, parents will not be entitled to reimbursement for such placement unless it offers their disabled child’s education is otherwise proper under IDEA.  Generally that means the private school must provide some sort of special education type services.

 

In the end, the basic principle is that each year the public school is offered a full opportunity to provide an IDEA eligible student with a FAPE.  If they fail in that responsibility, then a private school placement is a possibility.  However, the parent expecting reimbursement has to strictly follow the requirements of IDEA.  Then they may need to prove in a hearing, using expert testimony and evaluation evidence that their child is capable of, but not making meaningful educational progress.  Alternatively, that the education offered to their child in the proposed IEP does not provide a FAPE. 

 

Just from this brief review, you can see this is a complex area of the law.  One excellent resource for information in this area is from attorney Pete Wright’s web site at www.wrightslaw.com.  He was the attorney that successfully represented the parents in the Carter case.  That case is the precedent setting US Supreme Court case on parental reimbursement for private school placement.  In the future, when No Child Left Behind takes full effect, there also may be opportunities for IDEA eligible children in a “failing school” to receive some type of voucher assistance to attend another school, including private schools.
    
 

John Brower, JD
Education Law Center, PLLC
Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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