When the Supremes decided Forest Grove v. TA last week, it struck me as a sound statutory interpretation decision, removing an unintended barrier from the path of children obtaining a free appropriate public education.  The Court held that a student could obtain reimbursement for private education for a learning disabled child who not been part of a district’s special education program first.

While it’s not surprising that school districts, faced with special education as an unfunded mandate, found the decision unpalatable.  They were constrained to pay the freight, which came from budgets that were already tight and subject to the ever increasing demands of teacher contracts and the beloved step increases.  But they weren’t the only ones troubled.

Walter Olson, from Overlawyered, usually has quite a good feel for such issues.  But this time, he wasn’t persuaded.  Quoted by San Francisco Chronicle columnist Debra Saunders, Olson said: 

Walter Olson of overlawyered.com nailed the problem with the majority ruling when he opined in an e-mail, “The impulse to get a better shake for one’s kid is universal, but it’s disproportionately wealthy and clever parents, with their hired lawyers and experts, who succeed in using these rules to obtain a private school education at public expense. In this case, the question was whether parents should at least try the public schools’ proffer of special-ed services before declaring them inadequate, which doesn’t seem to me to be too much to ask.”

Walter’s beef raises two issues, both warranting some discussion.  The larger issue, why parent’s shouldn’t have to “try” public school programs before “declaring them inadequate” seems perfectly reasonable on its face, but reflects that same sort of theoretical misunderstanding that we so often find in Supreme Court decisions on criminal law issues.  It’s a view that’s disconnected from harsh reality, whether it’s the reality of life on the streets or life in the classroom.

For those whose view of special education is from a distance, learning disabled kids all look pretty much the same.  As any parent of a learning disabled child will be happy to tell you, at great length, is that no two are the same.  While they tend to use the same handful of diagnoses to categorize and pigeonhole them, mostly for lack of better or more specific explanations, the range of disabilities and severity has wild swings.  Their needs differ enormously, in ways that can, and have, filled tomes of academic and medical studies.  The one thing that parents, as well as neuropsychologists, understand is that there is no such thing as the panacea of special education.

Schools, on the other hand, have some hard constraints.  There is only so much money, room, personnel and understanding available to deal with children with special educational needs.  Because of this, they use the “panty-hose method,” or one size fits all.  A district with a particularly good program, and there are some, will be able to adequately educate a middle ground of learning disabled students this way, those with moderately severe disabilities of a generalized sort.  Never a great solution, but FAPE doesn’t promise perfection.

But the panty-hose method is worthless for those students whose disabilities fall outside the “norm”, though there really is no norm except in the minds of public school educators.  As for those districts whose programs are just awful, more like going through the motions of putting the LD kids in the same classroom to keep them away from the “normal” kids while offering a teacher who uses small words spoken in a loud voice, as if that was a viable pedagogical method, they can kiss any chance at a future goodbye.  This is babysitting under the guise of special ed. 

What becomes brutally clear very quickly to parents is how inappropriate these programs can be for their children.  In this context, inappropriate can range from the conflicting mix of disabilities found in a single classroom to the flagrantly clueless special ed teacher to the contra-indicated teaching methodologies.  Bear in mind, districts tend to have one, maybe two at most, special ed classes per grade.  All the special needs students are thrown in together, despite the fact that they may have diametrically opposed needs.  To use an analogy that people who have never actually held a learning disabled child’s hand will understand, it’s like putting a first grader and a high school senior in the same classroom, and telling them to have a nice day.

Walter’s question is why not give it a try, at least.  Aside from the fact that it is often obvious from the outset that some public school special ed programs offer no educational benefit, Walter ignores a very basic, very real problem for parents and children:  You only get one chance to be a child.  There is no “do-over” for childhood.  A year of school lost to worthless program is lost forever.  To a child, a year is forever. 

To an LD child, it’s the waste of an opportunity to improve one’s condition that we cannot afford to lose.  They need every year to count, to improve their education, understanding, life.  These children already function at a deficit, and need education more than “normal” children if they are going to survive, contribute and enjoy a relatively normal life.  They can’t afford to lose a year just to give  the school district’s a shot.  This isn’t a game for learning disabled students.  This is their one chance at having a life, and it’s not something to squander cavalierly.

As to Walter’s second issue, why the wealthy seem to be the ones most likely to take advantage of the law enabling learning disabled students to obtain reimbursement to private, specialized schools, his point is well-taken, but easily, and unfortunately, explainable.  There are a handful of specialized schools that provide life-changing education for learning disabled students, and they cost a fortune, if you are lucky enough to get a place.  If I was to guesstimate, there is one seat for every thousand children who would benefit from these schools.  They tend to be very small, very specialized and very, very good at what they do.  But it costs a bundle to provide this type of education to this small handful of students.

This sets up two financial obstacles that give rise to Walter’s issue.  The first is the cost of litigation, when the school district refuses to place an LD student in a private school.  The mechanics of a due process hearing under the IDEA take quite a while to reach fruition, meaning that the administrative proceedings that a parent must go through just to get to an “impartial hearing officer” (as they are called, to be distinguished from the “partial hearing officer” otherwise used by school districts), without even touching the issue of appeals, requires that a parent have substantial resources to pay an education law attorney. 

This isn’t a contingent fee situation; the attorneys get paid for their services, and there is no assurance that the parent will win in the end.  Indeed, many hearing officers have “heard it all before” and have lost any particular sensitivity to the needs of children.  So the parent must not only have the ability to pay a lawyer, but the ability to lose whatever money has been paid in the case of an adverse outcome. 

The time frame for these hearings essentially costs parents a year at minimum, which gives rise to the second expense.  Assuming a parent is fortunate enough to get a place for his child in an appropriate private school, the next step is to enroll the child and pay the private school bill while simultaneously maintaining the action against the school district.  This means that the parent must front the cost of the private school and seek reimbursement, rather than payment, of the costs.  This happens while the parent is paying the lawyer to challenge the district’s placement.  There is a huge amount of money at risk, and in the event a parent who is not possessed of substantial wealth loses, it could bankrupt a family.  Bear in mind, families may well have other children who suffer for the lack of funds used to pay the private school and lawyer in the hope of reimbursement.

So why is it the wealthy who end up being the movers in these cases?  Because no one else can afford to do it.  The wealthy make the fight so that others, whose children are every bit as deserving of a real education, can hopefully benefit from their efforts.  The problem isn’t that the wealthy seem to disproportionately benefit, but that the non-wealthy are precluded from obtaining a FAPE for their children by a system that makes it financially untenable for them to do so.  It’s not for lack of desire
, but lack of cash in the face of a system that is shockingly onerous, time-consuming and expensive.

It’s fair to say that most parents of learning disabled children want their babies to have a real shot at being educated and growing up to live a happy life.  It’s probably fair to say that most people think that’s what schools ought to be providing.  That it’s our public schools that are so often the impediment to this is the real shame.  It shouldn’t require a legal team and a wealthy parent to challenge the school district’s panty-hose methods, just as schools should show far greater comprehension of their mission than to just pigeonhole learning disabled students in a classroom at the back of the school building. 

For now, decisions like Forest Grove are necessary to compensate for the failure of public schools to provide a free appropriate public education to learning disabled students.  Great minds like Walter’s would be better put to fixing the problem with public schools than questioning the ad hoc methods of parents to obtain an education for their child.