Northern District of New York Addresses Appropriateness of Private School Placement
A recent decision by the United States District Court for the Northern District of New York, R.H. v. Board of Education Saugerties Central School District, 1:16-cv-551 (N.D.N.Y. May 21, 2018), analyzes the appropriateness of a private school placement under Burlington/Carter. For those not familiar with the Burlington/Carter analysis, a brief summary is warranted. When a parent seeks private school tuition reimbursement from a school district, the hearing officer or judge applies a three-step test to determine whether the parents are entitled to reimbursement. First, the school district must establish that the special education program and placement the school district offered was appropriate. If it was not appropriate, the burden then shifts to the parent to prove that the private school placement was appropriate. This appropriateness standard is more relaxed than the school district’s burden on the first prong. Finally, the court will determine whether the equities of the case favor reimbursement.
The R.H. decision reviewed the appropriateness of a private school placement for a seventh-grade student diagnosed with autism and anxiety. The student was home-schooled for several years and then attended a Board of Cooperative Educational Services (BOCES) program for half of sixth grade, where he experienced issues with anxiety, bullying, attendance, and completing work. For his seventh grade year, the CSE recommended another BOCES program designed specifically for students on the autism spectrum. The parents, however, rejected this program and enrolled him in a small, private school for, according to the opinion, “students with high-functioning autism who did not function well in a traditional school environment.” The school at the time had only four students, none of whom were in seventh grade. The court described the program offered by the private school as follows:
"[S}tudents did not receive homework, were skipped over if they declined to read in a given subject area, were taught using outdated materials, had changing schedules during their five-hour school day, and were not required to make up work that they failed to complete. The school did not use fluorescent lighting or school bells in an effort to decrease anxiety."
With that description, you will probably not be surprised to learn that the court affirmed the State Review Officer’s determination that the parents failed to establish the appropriateness of the private placement. The Court adopted the the SRO's findings that, among other things, the parents did not establish that the school addressed the student's anxiety, did not create specifically-designed instruction for his social-emotion needs, and did not establish that the student was progressing at the school.
On top of the SRO’s findings, the district court noted that:
"[T]he record demonstrates that, if C.H. did not wish to read at [the school], he was simply skipped over, and if he did not complete assignments, he was not required to make them up or receive any consequences. Furthermore, [the school] did not develop any written behavioral plan to address C.H.'s anxiety, provide visual aids as were previously useful, or maintain a set-schedule. And R.H. presented no evidence regarding the academic goals or education plan set for C.H."
The district court also noted scant objective evidence of the student’s progress such as report cards, progress reports, or work samples. Overall, the district court agreed with the SRO’s determination that the private school “offered the type of advantages that might be preferred by any child, disabled or not,” however, the evidence did not support a finding that the school offered a program tailored to meet the student's unique needs.
Although not a great decision for parents, the decision is instructive to both parents and their attorneys and advocates. When unilaterally choosing a private school, parents need to examine the manner in which the school can address the student’s unique needs. That a school has a low teacher to student ratio or is generally “quiet” and “supportive” does not necessarily mean that it is appropriate for the child. Stated differently, simply because a student does not function well in a traditional school environment, does not mean that any non-traditional environment will do. The school must offer a program that is tailored to the student's unique needs.