I attended a "friend-raising" breakfast this morning for United Cerebral Palsy Association of Oregon & SW Washington.  I've always been impressed by UCP and their director, Bud Thoune, for their high standards and dedication to the lives of the people they serve.

This event did not change my opinion.  On the ticket for the event are listed five principles: Be Visible, Be Independent, Be Involved, Have Friends, Make a Difference.  What a clear expression of how people with disabilities, families and advocates can act to achieve inclusion!  Disability will never be accepted as a normal part of life unless people with disabilities are visible, independent and involved.

We at DRO have been doing our part to be more visible in promoting the rights of our clients and communicating a disability rights perspective to a widening community.  In that spirit, I'm letting you know that Bud reminded us breakfasters that we just marked the tenth anniversary of the Supreme Court's Olmstead decision.  In Olmstead, the Court found that the ADA prohibits unnecessary segregation of people with disabilities in institutions.  That's right.  Congress said, and the Supreme Court agreed, that isolation, dependence and hopelessness must not be promoted by government policies. 

Everyone deserves the chance to lead a meaningful life.  With the love of his family and support from UCP, A.J. will have that opportunity.  But isn't it shameful that a school district would not do what it can to contribute to this simple, yet profound, goal?

Guest speaker Art Edwards brought home the message of inclusion.  Art is a new member of the UCP Board and a reporter for KOIN.  He told us about his family, including his teenage son A.J. who experiences CP and occasional seizures.  His family is about to move to Tigard because its schools have a more inclusive educational approach than their present school system in Beaverton.  Art talked about life with A.J. including A.J.'s strategic use of the horn on his power wheelchair, his love of baseball, and his delight in yelling "flugelhorn!"  The whole family -- Art, his wife and daughter -- are dedicated to A.J. and are willing to make the sacrifices required for him to thrive.  For example, Art's daughter is accepting the move to Tigard because "it will help A.J."

When DRO changed its name last year, we came up with three words that evoke our vision: Opportunity,  Access & Choice.  Above all, I think that Olmstead, the work of UCP and the hopes of A.J. and his family are about opportunity. 

Everyone deserves the chance to lead a meaningful life.  With the love of his family and support from UCP, A.J. will have that opportunity.  But isn't it shameful that a school district would not do what it can to contribute to this simple, yet profound, goal?

Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided  a free appropriate public education [FAPE] which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected.

 A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.

 It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether.

 That IDEA affords parents substantial procedural safeguards, including the right to challenge a school district’s eligibility determination and obtain prospective relief is no answer. The review process is ponderous and therefore inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid detriment to the child’s education.

 [T]his case vividly demonstrates the problem of delay, as respondent’s parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005—almost a year after respondent graduated from high school.

 States expressly agree to provide a FAPE to all children with disabilities. An order awarding reimbursement of private-education costs when a school district fails to provide a FAPE merely requires the district “to belatedly pay expenses that it should have paid all along.”

 Parents are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.  And even then courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school. In considering the equities, courts should generally presume that public-school officials are properly performing their obligations.  As a result … parents who “unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.

 [W]e conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.

 When a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted.

TA was a high school student in the 6,000-student Forest Grove district.  He had spent most of his educational career in Forest Grove and had never been considered for special education.  When his school work fell off, he was evaluated and found to have attention deficit hyperactivity disorder.   The school district, however, would not provide him with special education services, finding that TA’s disability was not affecting his educational progress. Two years later, TA’s parents enrolled him in a private school and asked Forest Grove to reimburse them for the cost of the tuition.  The school district refused but an administrative hearing ruled that the parents should be reimbursed.  The Oregon District Court reversed this decision but was, itself, reversed by a panel of the 9^th Circuit Court of Appeals.  The US Supreme Court will now make the final call.

DRO signed onto a brief that was submitted in support of TA’s position.  The brief, prepared by DRO’s national organization, the National Disability Rights Network, and others, supports the proposition that parents should be reimbursed when a school district utterly fails to meet the needs of a child with a disability.  TA has also received the support of the US Department of Justice.  It filed a brief stating: "When a child with a disability has been denied a free appropriate public education, IDEA authorizes an award of private-school tuition reimbursement regardless of whether the child previously received public special education."   If this were not the case, tuition reimbursement could "never be available to parents if a school district wrongly refuses to identify their child as having a covered disability."

The legal question in the case, Forest Grove School District v. T.A. (Case No. 08-305), is whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.  It is interesting to note that the Supreme Court heard the same issue in 2007 in Bd. of Ed. of NYC v. Tom F.  In that case, the court deadlocked 4-4, with Justice Kennedy not participating.  All nine justices will decide TA.  And so, if the other eight justices hold their ground, Justice Kennedy will be the decider.

DRO believes that it is essential that students receive appropriate evaluations early on and the special education and related services to which they are entitled under federal law. When schools fail to comply with the law, parents are forced to take matters into their own hands and seek other placements.  Schools should partner with parents so that the student has the benefit of the school’s experience and expertise and does not have to go elsewhere to seek an adequate education.  This cannot be achieved if schools have a fiscal incentive to cut a student loose.

. The case will be argued before the Court on April 28th.