Free and Appropriate: Parent's Wealth Muddies Special-Education Tuition Case

Article excerpt

On the first day of its 2007-08 term, the Supreme Court heard oral argument in a case that pitted the nation's largest school district against a wealthy entertainment executive. At issue in New York City Board of Education v. Tom F. was whether parents must enroll their disabled children in public schools before being eligible for placement in a private program. The Second Circuit had ruled that first participating in a public program was not required. The school district appealed.

Under the Individuals with Disabilities Education Act (IDEA), originally passed in 1975 as Education for All Handicapped Children, children with disabilities are entitled to a free appropriate public education based on an individualized education program (IEP). If the public school says it cannot provide an appropriate education or if an appeals board after a hearing determines that the public program is inadequate, parents are entitled to reimbursement for a suitable private program.

Just nine days after hearing oral arguments, the Court produced a two-sentence per curiam decision based on a 4-4, but unidentified, split. The decision upheld the Second Circuit, but lacks precedential value. The tie occurred because Justice Anthony Kennedy had recused himself. While the even split might point to a typical liberal/conservative divide in need of brokering by the unpredictable Kennedy, the facts of the case suggest that the split may not be ideological.

In particular, the parent behind the case muddied it. Tom Freston, the Tom F. of the title, seemed an unlikely person to be leading a challenge against the school board. As a co-founder of MTV (Music Television Network), former Viacom executive, and recipient of an $85 million golden parachute, Freston could afford to pay for the best education for his son, Gilbert, who was diagnosed in the mid-1990s with attention deficit hyperactivity disorder. However, in both 1997 and 1998 Freston sought a special education evaluation from the district.

The district created an IEP that called for placing Gilbert in a public school. Freston objected, enrolled his son in Manhattan's exclusive Stephen Gaynor School, with tuition of more than $20,000 per year, and threatened to sue. The district agreed to pay tuition for those two years, but created a new plan for Gilbert in 1999 that would have placed him in a public school. …

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