Details on the “unwritten rule…”

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In the presentations I have done over the past couple of years I have emphasized what I call “the unwritten rule” in special education cases—that the hearing officer or judge is always quietly assessing the comparative reasonableness of the parties. In a case from New York, the court spelled out what it means to be reasonable. This is helpful, since “reasonable” is a subjective and vague term.

The parents in this case were seeking tuition reimbursement for private schooling. The court held that the school district failed to offer FAPE and that the private school where the parents placed the child was “proper” under IDEA. Normally, that would be enough to get an order of tuition reimbursement. But the court considered a third factor—the “equities” which is legalese for the basic fairness of the situation. Key Quote:

Particularly important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.

The court noted that there was “strong evidence that Plaintiffs were part of an organized campaign to shift students from iHope to iBrain, and to thwart the District’s process for preparing IEPs for those students.” (Note both are private schools, but iHope was the school that the public school proposed. The parents preferred iBrain.) Key Quote:

Given Plaintiffs’ conspicuous absence from the CSE meeting [IEP Team] and the systematic, obstructionist behavior in which they engaged that was orchestrated by Mr. Donohue [plaintiff’s lawyer] the IHO and SRO appropriately determined that Plaintiffs did not genuinely consider the proposed placement at iHope.

Rather than using general terms like “reasonable” or “collaborative” the court did us a service by providing a list of factors that courts consider when determining if a parent has acted unreasonably. This is in the specific context of a request for tuition reimbursement, but many of these factors apply across the board. They include:

  1. Providing reports to the IEP Team.
  2. Attending the IEP Team meetings.
  3. Participating in those meetings.
  4. Giving timely notice to the school of an intent to place the child in a private school and seek reimbursement.
  5. Visiting the placement proposed by the public school.
  6. Genuinely considering the district’s proposal.
  7. Whether they were determined to place their child in the private school regardless of what the public school offered; and
  8. Whether the parents unreasonably delayed anything.

The court also listed two factors that are relevant to the district’s reasonableness: 1) any unreasonable delay; and 2) the overall appropriateness of the district’s conduct.

It’s Neske v. Porter, decided by the federal court for the Southern District of New York, and published by Special Educator at 81 IDELR 157.


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Tomorrow: lawyer advertising and the Commissioner’s jurisdiction