From the Concord Monitor:
By KATHARINE WEBSTER
The Associated Press
February 25. 2004 8:00AM
Special education students are not entitled to private schooling at taxpayer expense unless they first give the public schools a chance to create and implement a special education plan, a federal appeals court said.
The ruling by the 1st U.S. Circuit Court of Appeals in Boston came Monday in the case of a Greenland girl, Katie C., whose parents moved her from public to private school before they - or her teachers - realized she needed special education.
Jeanne Kincaid, lawyer for the Greenland School District, said she believes the ruling is the first by a federal appeals court upholding Congress's 1997 amendments to the Individuals with Disabilities in Education Act.
"It actually is a sweeping ruling and will have a major ripple effect," she said yesterday.
If the public schools fail to provide appropriate special education and the parents have notified them about their concerns, then they can enroll the child in private school and seek tuition reimbursement, she said.
But if parents enroll their children in private school first, "You can't tap into us, the public, to pay for it," she said.
Scott Johnson, who represented Katie's parents, said the decision unfairly penalized them for enrolling her in private school when they knew "things just weren't working," but before they knew she was learning disabled.
"It's just wrong," he said. "What the court said is that when she left, she now forfeits all of her rights, no matter what the school did or failed to do."
Katie, diagnosed with Attention Deficit Hyperactivity Disorder before second grade, got average or above-average grades in public elementary school with help from her teachers, homework help from her mother and a private tutor in fourth grade.
But she complained other children were harassing and teasing her. So for fifth grade, during the 2000-01 school year, her parents enrolled her at Mont Blanc Academy, a private school.
When Mont Blanc asked her mother to stop helping Katie with her homework, Katie failed a math class. After her mother began helping her again, she got mostly A's and B's.
That winter, Katie switched to the Learning Skills Academy, a private school specializing in children with learning disabilities and ADHD. At the same time, Katie's parents asked the Greenland School District to evaluate her for special education services.
The district decided Katie had ADHD and an anxiety disorder, but did not have a learning disability. Still, it offered help with organizing her schoolwork, a problem for ADHD sufferers.
In August 2001, a psychiatrist retained by Katie's parents diagnosed her with Asperger's syndrome, which can interfere with academic performance and make children overly sensitive to teasing. That fall, the district offered to provide her with a personal aide and other services.
However, her parents decided to keep her at the Learning Skills Academy because she no longer needed help with her homework, was making friends and was a "much more confident, happier child."
An administrative hearing officer found the district's special education plan for Katie was inadequate and ordered the district to pay her private school tuition. The district paid $45,000 before a federal judge in Concord overturned the decision last March.
Judge Joseph DiClerico said Katie's parents were not entitled to tuition reimbursement.
However, he agreed with the hearing officer that the district evaluation team should have diagnosed her as learning disabled right away, since the team knew she had needed extra help in first through fourth grades.
After she was diagnosed with ADHD, her public school teachers sat her up front to keep her attention focused, gave her checklists of tasks to complete and rewarded her with Garfield stickers.
Katie's parents appealed, but the First Circuit said that because Katie was no longer in public school when her parents first asked for the special education evaluation, they were not entitled to tuition reimbursement.
The district cross-appealed, arguing it would set a dangerous precedent to determine Katie was learning disabled because her "regular ed" teachers helped her stay focused and motivated.
Under that rationale, virtually every child who got individual attention or Garfield stickers could be considered learning disabled, Kincaid said.
"So if your daughter needs glasses and they say, 'Come on up here,' then she's a special ed student - that's absurd," Kincaid said.
Groups ranging from the Disabilities Rights Center to the New Hampshire School Boards Association jumped in on either side with "friend of the court" briefs.
On Katie's behalf, they argued that districts could avoid identifying students needing special education by hiding "behind the veil that all students receive some individualized attention."
The First Circuit declined to decide that issue, saying it was moot.
"This is an extremely nuanced question of law that we leave for another day," Circuit Judge Sandra Lynch wrote for the court.