Bernstein, Shur, Sawyer & Nelson Wins Major School District Case

Decision by First Circuit Court establishes important precedent in special education; will save school districts tax dollars

Attorneys at Bernstein, Shur, Sawyer & Nelson earned an important victory for school districts throughout New England when the First Circuit Court of Appeals on Monday decided in favor of New Hampshire’s Greenland School District in a special education tuition reimbursement case.

The federal court ruled that the school district did not have to reimburse a student's parents for the costs they incurred privately for special education services when the parents chose not to enroll their student in a public school where a program was offered.

"I believe this to be the first decision of its kind in the U.S. issued by an Appellate Court," said Jeanne Kincaid, the lead attorney from Bernstein, Shur, the firm representing the school district. "Therefore, I predict that it will have a major impact not only in New England but possibly the rest of the nation, limiting what has been a growing trend in securing publicly funded private school education when appropriate services are available through the public school."

Kincaid continued, "Presently, towns and taxpayers shoulder the burden when a school district has to pay for private schooling. So this decision is also a matter of fairness to the entire community - not all costs can or should be passed on to towns and this court drew the line."

The decision by the First Circuit Court of Appeals, binding in Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico, severely curtails the reach of the Individuals with Disabilities Education Act (IDEA), the nation's special education law, and the remedies afforded therein to parents who voluntarily enroll their children in private schools, she said.

In Greenland School District v. Amy N., the First Circuit upheld a District Court decision denying tuition reimbursement to the student's parents, who although found to be in need of special education had chosen not to enroll the child in the public school. The parents had placed the girl first in a non-special education school, followed by a school for children with disabilities.

The student had been enrolled from grades one through four in the public school and scored average or above average on every measurement, including statewide testing, prior to the parents' decision to remove her from the public school without notice, Kincaid said. During this time she had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and the teachers made some classroom adjustments to help her stay on task.

Following the parents' decision to enroll her in a private special education school, they asked the school district to evaluate her for special education, the only time they had ever done so. Although the school district initially found her ineligible, after a psychiatrist diagnosed her with Asperger's Syndrome, a type of autism, the school district agreed to change its eligibility determination and offered to draft an individualized education plan, or IEP, that called for her return to the public school. The parents declined the program and sued to keep their daughter at the private special education school.

Kincaid cited several far-reaching aspects to the decision:

"First, the Court held that the extraordinary remedy of tuition reimbursement for private school enrollment is unavailable in most instances where the parents have not given the public school the opportunity to work with the child, or in cases where they have done so, failed to provide notice of their dissatisfaction with the special education services the child received through the public school prior to removing the child," said Kincaid.

"Second, the Court agreed that under such circumstances where the student is not enrolled in the public school district, the public school has no obligation to develop and offer the parents an IEP. Parents in such situations have no right to an individual entitlement under the IDEA and therefore a school district is under no obligation to develop an IEP for such students, unless and until the child enrolls in the public school program."

"Third, if a school district fails to identify a student as disabled in a timely manner, relief is available, but not tuition reimbursement, which was the exclusive remedy sought by the parents in this instance," Kincaid said.

"Fourth, this decision significantly reduces the cost of legal defense of school districts as the Court limited the right of parents in such situations to secure a hearing before the State Department of Education. Public schools often have to spend considerable tax dollars defending the claims of parents who have chosen not to enroll their son or daughter in the public school system. With very limited exceptions now, such hearings are beyond the power of the State Department of Education to entertain and should significantly reduce taxpayer exposure in such cases. Parents may choose to file a complaint with the State Department of Education, but they have no hearing right – a right that drives up the cost of legal defense."

Contrary to the parents' assertions, the First Circuit underscored that parents of children with disabilities, no matter where they are enrolled, have certain rights and remedies and a forum to entertain any claimed violation of a right. What this decision does is clarify that if parents choose to place their son or daughter in a private school, without involvement of the public school system, and not as a result of dissatisfaction with the special education services provided by the public school, their rights are correspondingly more limited and the forum in which to exercise such rights differs from that afforded parents of children enrolled in public schools."

"Congress clearly intended to limit taxpayer exposure to funding private school choices, and that is all the First Circuit endorsed."

Kincaid is a shareholder in at Bernstein, Shur, Sawyer & Nelson in Portland, and a principal of Advanced Educational Solutions, an educational consulting division of the law firm. She represents schools and universities on issues concerning both students and employees with disabilities, and lectures widely in the area of disability law and education.

Before joining Bernstein, Shur, Kincaid served as a special education hearing officer and mediator for the State of New Hampshire and has served as an adjunct faculty member of the University of New Hampshire's Graduate School of Education, Antioch University and Franklin Pierce Law Center. She previously served as an advisor to AHEAD, a national organization whose membership consists of higher education staff that coordinate services for students with disabilities. Kincaid has authored book supplements to Section 504, the ADA and the Schools and is a contributing author to the national publication Disability Compliance for Higher Education. She is a 1982 graduate of the University of Oregon School of Law.

Other attorneys from the firm who worked on the case include Mary Delano, Jennifer Sawyer and Joan Fortin.

Bernstein, Shur, Sawyer & Nelson is one of northern New England's largest law firms with more than 70 attorneys in offices in Portland and Augusta, Maine and Manchester, N.H. The firm provides legal services in all major subject areas, including corporate and commercial law, litigation and trials, municipal and governmental affairs, education law, construction law, employment law and tax and estate planning. Bernstein, Shur also has an active practice in bankruptcy, health law, environmental law, technology and commerce, legislative law, intellectual property, public utilities and other regulated industries. For more information, visit the Bernstein, Shur web site at www.bssn.com.
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