PRELIMINARY STATEMENT

The relief sought by John XXXX through this impartial hearing is substantively the same relief routinely sought by families pursuant to the United States Supreme Court decision in Florence County School Dist. Four v. Carter, namely an order directing the Board of Education to provide a disabled child with a free and appropriate education, as guaranteed by the Individuals with Disabilities Education Act (“IDEA”), at a private school that is not on the State’s pre-approved list. However, unlike the families usually seeking private school tuition under Carter, John’s family is too poor to pay the tuition and then seek reimbursement from the Board of Education.

There is no dispute that prospective payment of the private school’s tuition is the only way to provide John with a free and appropriate education. Both the Board of Education and John’s family agree that only a non-public school placement will meet his needs. Despite six years of special education in the public school system, John has made little progress. John’s individualized education program for 1999-2000 therefore mandates that John be placed in a non-public school setting at public expense.

The Board of Education attempted for several months to find an appropriate placement for John at an approved non-public school. John’s family cooperated with the New York City Board of Education and took additional steps to locate an approved placement for John. By October 1999, however, neither the Board of Education nor John’s mother had been able to locate an approved school that could meet his needs, and John was sitting at home with no educational services whatsoever. His placement in the non-approved private school program administered by the Cooke Center for Learning and Development in October 1999 was the last option—and the only available option—to provide John an appropriate education for the 1999-2000 school year. John’s family is unable to afford the tuition for the Cooke Center program, and instead must seek prospective payment from the New York City Board of Education for the tuition for the school year.[1]

The Board of Education does not dispute that prospective payment to the Cooke Center is John’s only hope for a free appropriate education, but claims that it has no authority to make prospective payments on his behalf. This position is unfounded and in fact directly contradicted by well-established case law. The New York City Board of Education has no procedural or substantive defenses to the prospective payment of John’s tuition, given that the prerequisites to paying the tuition at the non-approved private school have been satisfied. As established by the Individuals with Disabilities Education Act and affirmed by the United States Supreme Court, the IDEA grants children with disabilities a substantive entitlement to a free appropriate education, and this substantive entitlement trumps any procedural obstacles that may seem to stand in its way. This principle holds true even if the alleged procedural obstacles are found in State education laws or the IDEA itself. As a result, the New York City Board of Education is required to pay the tuition for John to attend the Cooke Center program – regardless of whether such tuition is paid prospectively or reimbursed – in order to fulfill his right to a free and appropriate education for the 1999-2000 school year.

Denying prospective payment of tuition in cases like John’s makes a free appropriate education dependent on a family’s financial resources. Poor children, like John, stay at home or languish in inappropriate programs, while their more wealthy peers attend appropriate private programs at public expense. The resulting two-tier education system frustrates the purpose of the IDEA, as well as the ideal of equal opportunity upon which this country’s public educational system is based. Where, as here, a free appropriate education would otherwise be denied, prospective payment should be awarded.

FACTUAL BACKGROUND

John XXXX, a thirteen-year-old boy diagnosed with a learning disability, seeks prospective payment of his tuition for the 1999-2000 academic school year for the program administered by the Cooke Center for Learning and Development (the “Cooke Center”). John previously attended public school, and was placed in various special education programs as well as a regular classroom setting with a consultant teacher over the course of the first six years of his education. Tr. 78:10-78:16; Exh. L.[2] John failed to show any significant academic progress in these public education programs, continuing to have pre-primer reading and low mathematics skills at the end of his sixth-grade education. Ex. E, at 3; Tr. 63:9-63:13. In the individualized education program for John XXXX dated June 1, 1999 (the “1999 IEP”), the Committee for Special Education (“CSE”) concluded that John “has not succeeded” in a general resource room or MIS I program, and recommended that John be placed in a non-public school program and be provided speech and language services. Ex. E, at 1, 8.

During the summer of 1999, the New York City Board of Education attempted to find a placement for John at an approved non-public school, but could not find a program with a vacancy that was appropriate for John’s age and academic and social skills. Tr. 57:10-57:22. The Board of Education sent John’s mother a letter dated September 21, 1999, stating that “the Board of Education (BOE) is not able to provide special education services to your child” and further stating that if John’s mother “enroll[s] [her] child in an appropriate private school by 10-21-99 [her] child may remain there for the rest of the school year, even if the BOE offers [her] child a placement before that date.” Ex. N (emphasis omitted). John’s mother cooperated with the CSE to find an appropriate placement for John for the 1999-2000 school year. Tr. 58:24-59:1. John’s mother independently took additional steps to locate an appropriate placement for John at an approved private school, including contacting several approved schools and visiting one school, but she was unable to find an appropriate program that had an opening for John. Tr. 58:3-58:7, 64:22-65:16, 74:25-78:8.

In September 1999, after being informed that the Board of Education could not find an approved placement for John, John’s mother found him a placement in a Cooke Center program based out of the St. Joseph’s School. Tr. 67:5-67:19. John has attended the Cooke Center program, in the level four classroom, since October 12, 1999. Tr. 82:22-83:8; 81:21-81:23.

John already has significantly benefited from his attendance at the Cooke Center program, demonstrating substantial gains in his math, reading, writing, communication and social skills over the last few months. Tr. 73:15-74:8, 88:11-88:24. In fact, after attendance at the Cooke Center for approximately 3 ½ months, John already has made substantial gains with respect to the short- and long-term speech, language and mathematics goals established in his 1999 IEP, even though these goals were written for a 12-month program. Ex. E at 6A-6D; Tr. 110:17-110:22, 111:22-113:12, 114:7-115:17.

The program being provided to John through the Cooke Center conforms to the recommendations contained in John’s 1999 IEP, including through: (i) the placement of John in a classroom setting with a ratio of 9:1:1:1, Ex. E at 7 (recommending staffing level of 12:1:1 or smaller), Tr. 96:5-96:19; (ii) the provision of 90 minutes of speech and language services in a three-student group setting, Ex. E. at 9 (recommending 80 minutes of weekly therapy in a group of three students), Tr. 105:1-105:3, 107:19-107:20; (iii) a focus on specific speech, language and mathematical goals, Ex. E at 6A-6D, Tr. 84:3-84:11; 107:19-109:6; 110:9-113:23; and (iv) accommodations to John’s classroom environment to assist his reading skills, such as positioning John at the front of the classroom and encouraging the use of a finger to keep his place during reading. Ex. E at 5, Tr. 113:16-113:21.

John’s schedule at the Cooke Center places him in classroom settings with other children within a three-year range of John’s age, and with similar disabilities and functioning levels. Tr. 81:15-81:23, 83:12-84:16, 99:23-102:12 (all but one child in classroom are learning disabled). The Cooke Center program also provides John with regular opportunities for inclusionary activities with non-disabled children, including his placement in the regular St. Joseph’s School classes for homeroom, gym, music, computers and lunch, and the use of reverse mainstreaming in a weekly drama and acting activity. Tr. 100:15-100:22, 106:14-107:18, 115:18-115:21.

John’s family, whose sole source of income is public assistance, is unable to pay the $24,950 tuition for the current ten-month Cooke Center program.[3] Tr. 72:5-72:21, Ex. S. At the time John began attending the Cooke Center program, John’s mother understood that he was accepted on the condition that she pursue an impartial hearing to obtain payment of his tuition. Tr. 72:22-73:1. In the event that John’s family is unable to pay his tuition for the Cooke Center program, the Cooke Center has the right to terminate its contract to provide John with an education for the 1999-2000 academic year. Tr. 73:2-73:5, Ex. S.

ARGUMENT

POINT I

THE IDEA ENTITLES JOHN XXXX TO PROSPECTIVE PAYMENT
OF HIS TUITION BY THE NEW YORK CITY BOARD OF EDUCATION

The relief requested by John XXXX—the prospective payment of his tuition at the Cooke Center for the 1999-2000 academic school year—is an equitable remedy within the scope of relief allowed and, in this case, mandated under the IDEA and court decisions interpreting the statute, which requires the payment of tuition for a child with a disability at a non-approved private school where such payment is necessary to provide the child a free and appropriate education.

A. The Board Of Education Must Pay Tuition Even At A Non-approved
School If Necessary To Provide A Free And Appropriate Education

The right of every child with a disability to a free and appropriate education arises directly from the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. The IDEA provides that a free appropriate public education (a “FAPE”) must be available to “all children with disabilities” between the ages of 3 and 21. 20 U.S.C.A. §§ 1400(d)(1)(A), 1412(a)(1)(A) (West 1999). See also Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13 (1993) (the essence of the “IDEA was . . . to ensure that children with disabilities receive an education that is both appropriate and free”).[4] The United States Supreme Court has held that a free and appropriate education consists of an education, accompanied by any necessary related services, which is reasonably calculated to provide benefits to a disabled child. See Board of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 207 & 203 (1982).

As well established by a pair of United States Supreme Court decisions, each disabled child’s substantive right to a free and appropriate education, as guaranteed by the IDEA, overcomes any procedural obstacles that would prevent a state or local board of education from directly providing or paying for such an education. See School Comm. of the Town of Burlington, Mass. v. Department of Educ. of Mass., 471 U.S. 359, 372 (1985); Carter, 510 U.S. 7. In particular, the IDEA itself contains certain procedural standards that generally apply in a determination of what constitutes a free appropriate public education. These procedural standards are incorporated into the IDEA’s definition of a free appropriate education as follows:

special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C.A. § 1401(8) (West 1999).

The Board of Education takes the position that these procedural standards prevent prospective payment of tuition at schools that were not pre-approved by the State. These standards contain no language requiring pre-approval, but even if they did, Carter makes clear that it would defeat the IDEA’s statutory purpose to deny reimbursement of tuition based on a failure to satisfy the IDEA’s procedural requirements. See Carter, 510 U.S. at 13. In fact, the United States Supreme Court has repeatedly ruled that a child’s substantive right to a free and appropriate education trumps the need to abide by the IDEA’s procedural requirements, such as the procedural standards incorporated into the definition of a FAPE, where such procedural requirements would prevent the child from receiving such an appropriate education. See id.; Burlington, 471 U.S. at 372 (“The Act was intended to give handicapped children both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives.”).

The United States Supreme Court has explicitly rejected the argument raised by states and local boards of education in reimbursement cases that the procedural requirements of a FAPE imposed by the IDEA—including the requirement that the placement of a child with a disability “meet the standards of the State educational agency”—prevent a state or local board of education from being able to pay for a non-approved private school. In Florence County School Dist. Four v. Carter, a disabled girl’s parents unilaterally placed her in a non-approved private school in contravention of her individualized education program and without prior approval from the local school district or the state. Carter, 510 U.S. at 10. The girl’s parents then sought reimbursement of her tuition at the non-approved private school based on the fact that the school district was unable to provide the girl with an appropriate education in an approved setting. Id. The United States Supreme Court held that the local school district was responsible for providing reimbursement of the child’s tuition, even though the child had been unilaterally placed in a non-approved private school by her parents in contravention of her IEP. Id. at 13. In reaching its decision, the Supreme Court concluded that the standards for a FAPE imposed by the IDEA, including the requirement that a school meet the standards of the state, do not apply to unilateral parental placements and therefore cannot act as a barrier to a school district’s payment of a child’s tuition for an otherwise appropriate school. Id. at 12-13. To the contrary, the Supreme Court found the board of education’s emphasis on the application of state educational standards “ironic,” adopting the Fourth Circuit’s logic that:

[I]t hardly seems consistent with [the IDEA’s] goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child’s needs in the first place.

Id. at 14 (quoting Carter v. Florence County Sch. Dist. Four, 950 F.2d 156, 164 (4th Cir. 1991)).

The United States Supreme Court also has rejected the argument raised by local school districts that forcing a school district to pay tuition for non-approved schools (even where such placements are appropriate and no approved placements are available) would place an unreasonable financial burden on the school district. The Supreme Court recognized that the IDEA generally places significant financial burdens on states and local school districts; however, the Supreme Court concluded that the financial burdens associated with the payment of tuition at non-approved schools are wholly within the control of the state and its educational authorities, reasoning that:

public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims.

Carter, 510 U.S. at 15.

None of the reasoning in Carter is limited to cases of reimbursement. To the contrary, the same reasoning applies to cases seeking prospective payment of tuition for a non-approved private school in instances where a child’s parents are unable to front the tuition costs and later seek reimbursement. Both types of cases rest comfortably on the requirement that state or local school districts must provide students with disabilities with a free and appropriate education. In fact, the United States Supreme Court has recognized the potential necessity for awarding prospective payment in Burlington, 471 U.S. 359, the predecessor to Carter, which established the obligation to educate children with disabilities in private schools if public schools cannot meet the challenge. The Court stated that:

In a case where a court determines that a private placement desired by the parents was proper under the [Education of the Handicapped Act, the predecessor to the IDEA] and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.

Burlington, 471 U.S. at 370 (emphasis supplied).

B. Courts Have Recognized Prospective Tuition Payment
Is Sometimes Necessary To Guarantee
A Free And Appropriate Education For An Indigent Child

Applying the logic of the Carter and Burlington decisions, courts in the Second Circuit and other circuits have begun to recognize prospective payment of tuition as equitable relief necessary to insure that certain children with disabilities receive a free and appropriate education. In fact, no reported court decisions have reached a contrary result.

In a recent decision titled Connors v. Mills, 34 F. Supp.2d 795 (N.D.N.Y. 1998), a federal court in the Northern District of New York recognized the need to order prospective payment of tuition to a non-approved private school where a child would otherwise be denied a free appropriate education and her parents can show that they are financially unable to pay the tuition and seek reimbursement. In Connors, a parent objected to her child’s IEP, and unilaterally placed her child at a non-approved private school. Connors, 34 F. Supp.2d at 799. The school district then conceded that it could not provide an appropriate education for the child and that the private school placement was appropriate. Id. Following impartial hearing requests and additional IEP conferences, the parent and the school district entered into certain settlements whereby the school district agreed to reimburse the parent for her child’s tuition at the non-approved private school and, after the first year, to make prospective payments of the tuition pending a final decision by the Impartial Hearing Officer. Id. The parent then initiated a federal suit against Richard Mills, the Commissioner of Education, and The New York State Board of Regents, seeking a determination that the state was required to provide prospective payment of her child’s tuition without her seeking an impartial hearing each year to secure such payment, given that the state agreed that it was unable to provide her child an appropriate education and that the private school at which the child was placed was appropriate. Id. at 799-800.

Applying the reasoning and holding of Carter, the Connors court rejected the state defendants’ argument that it would be a violation of the IDEA to provide prospective payment of tuition for a child in a non-approved private school based on the procedural requirement under the IDEA that a free and appropriate education consists of a program meeting the standards of a state educational agency. Id. at 802-05. Instead, the Connors court adopted the United States Supreme Court’s reasoning in reimbursement cases and ruled that “the substantive guarantee of a free and appropriate education takes primacy over a state’s approval procedures when those two statutory provisions conflict.” Id. at 803. The Connors court further discussed the need to provide prospective payment for families unable to front the costs of a private non-approved school in order to satisfy the meaningful access to a FAPE guaranteed by the IDEA and enforced by the United States Supreme Court in the Rowley, Burlington and Carter line of cases. The Connors court recognized the implications of denying such relief, reasoning that:

By prohibiting prospective placement, [the state] Defendants would deny assistance to families that are not able to front the cost of a private non-approved school, without exception. Under Defendants’ reading of the IDEA, therefore, even in a situation . . . where both the school and the parent agree that the child’s unique needs require placement in a private non-approved school and that there are no approved schools that would be appropriate, a destitute child would be left in an inappropriate program because the parents would not be able to front the tuition of private placement.

Connors, 34 F. Supp.2d at 804 (emphasis supplied).

The Connors court, aware of the detrimental impact of the state’s refusal to provide prospective tuition payment for indigent families, continued:

Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional, and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services would undermine that very goal by making such access dependent upon a family’s financial situation.

Id. at 804 (emphasis supplied).

In short, the Connors court recognized that once a parent has, in satisfaction of the Burlington prerequisites, established that a school district is unable to provide an appropriate education and that the child’s private school placement is appropriate,[5] the difference between reimbursement and prospective payment of the child’s tuition is solely an issue of “the time of payment” and is “irrelevant to the fact of payment.” Id. at 805. The court concluded that where a family’s financial circumstances prevent the family from fronting the costs of a child’s tuition in a non-approved private school, “the state’s approval process must give way,” and the public school must provide prospective payment of the child’s tuition in the non-approved school.[6] Id. at 805-06. While the Connors opinion resulted from a case initiated in federal court rather than as an appeal of an impartial hearing, the court concluded that it seemed “beyond cavil” that an impartial hearing officer or state review officer could similarly order prospective relief. Id. at 806 n.7.

Another court in the Western District of New York recently issued an injunction requiring a school district to pay prospectively for a child with a disability to attend a non-approved private school after determining the school district could not provide an appropriate placement in an approved school and that the non-approved school where the child was placed was appropriate. In Sabatini v. Corning-Painted Post Area Sch. Dist., 78 F. Supp.2d 138, Case No. 99-CV-6550, 1999 WL 1288524 (W.D.N.Y. Dec. 29, 1999) (a copy of the decision is provided in the Case Compendium), parents of a child with a disability sought prospective payment of the child’s tuition at a program in a non-approved private college after the school district had agreed to place the child in a residential program in settlement of an impartial hearing. Id. at *1. After entering into the settlement, the school district conceded it could not locate an appropriate approved residential placement for the child, but refused to pay the tuition for the non-approved program in which the parents unilaterally placed their child. Id. at *1-2. The parents obtained an impartial hearing to request payment for the private school placement, which was granted by the impartial hearing officer along with a grant of compensatory education for the child. Id. at *2. The school district appealed the decision to the state review office, which appeal was not decided after two months. Lacking a decision from the state review office, the parents commenced the federal litigation seeking enforcement of the impartial hearing officer’s decision and related injunctive relief to insure the child’s continued placement in the non-approved private school. Id. at *2.

Applying the reasoning of Carter that a disabled child’s substantive right to a free and appropriate education prevails over any procedural requirements such as state approval of a school’s program, the Sabatini court held that the parents were entitled to a preliminary injunction requiring the school district to place the child formally at the non-approved school and make all necessary financial arrangements (including the prospective payment of tuition) to allow the child to attend the non-approved private school. Id. at *8, 9. The court concluded that the fact that the parents sought direct payment of their child’s tuition, rather than reimbursement under Carter, was a “distinction without a difference . . . since the ultimate issue in [both cases] is the same: whether the school district can be made under the IDEA to disburse funds to cover a child’s cost of education at a private school.” Id. at *4 n.1.

Other courts have recognized the need to require prospective tuition payment to non-approved schools in order to preserve a child’s meaningful ability to receive an appropriate education. In Susquenita School District v. Raelee S., 96 F.3d 78 (3d Cir. 1996), a family sought reimbursement for the placement of their child in a non-approved private school, which was granted at the state administrative level after being denied at the initial hearing. The school district appealed the decision to federal court and sought a stay of the state administrative decision ordering payment of the tuition and establishing the non-approved school as the pendency placement, which the district court denied. On appeal from the district court, the Third Circuit ordered the school district to provide reimbursement and pay the child’s tuition at the non-approved private school pendente lite until the conclusion of the litigation regarding the child’s appropriate placement, expressing the concern that:

Without interim financial support, a parent’s “choice” to have his child remain in what the state has determined to be an appropriate private school placement amounts to no choice at all. The prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.

Raelee, 96 F.3d at 87; see also Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 779 (3d Cir. 1994) (recognizing possibility of granting preliminary injunctive relief, including for payment of tuition).

C. The Impartial Hearing Officer Has
The Authority To Grant The Requested Relief

As recognized by various federal courts, a court—and by extension, an impartial hearing officer—is authorized under the IDEA to grant equitable relief not directly provided for by statute where such relief is necessary to insure a child with a disability receives the free and appropriate education to which he is entitled under the IDEA. See Sabatini at *4, n.1 (finding the award of prospective payment of tuition and reimbursement pursuant to Carter to be a “distinction without a difference”); Connors, 34 F. Supp.2d at 806 n.7 (concluding it would be “beyond cavil” that an impartial hearing officer or state review officer could award prospective tuition). As stated by the Sabatini court:

[T]he fact that a particular form of relief is not expressly provided for by IDEA does not necessarily preclude a court from awarding such relief, given the court’s broad discretion in determining what relief is appropriate in light of all the equities in the case.

Sabatini, at *8.

In fact, equitable relief not expressly mandated by the IDEA is routinely granted by impartial hearing officers, state review agencies and courts in other circumstances where it is necessary to insure that a child receive a free and appropriate education. See, e.g., Sabatini, at *8 (listing circuit court decisions recognizing the ability to grant compensatory education as equitable relief); Application of the Board of Educ. of the Sachem Central School District, Appeal No. 97-35 (N.Y.S. Office of State Review) (upholding impartial hearing officer’s grant of compensatory education); Application of a Child with a Handicapping Condition, Appeal No. 92-40 (N.Y.S. Office of State Review) (granting equitable relief to compensate for a failure to provide CSE-recommended services).

In In re Application of the Board of Education of The City School District of the City of New York, Appeal No. 97-78 (N.Y.S. Office of State Review), a State Review Officer held that a state statutory guideline limiting the Board of Education’s use of its state funding “does not, and cannot, alter the Federal statutory requirement that preschool children with disabilities must receive a free appropriate public education, whatever the effect the New York statute may have on the way the State and its subdivisions pay for special services.” Application of the Board of Educ., Appeal No. 97-78 at 6. In that case, the State Review Officer upheld the Impartial Hearing Officer’s order directing the Board of Education to pay for the preschool education program found to be appropriate for a child with a disability, notwithstanding a state statute that limited the Board of Education’s ability to “purchase” such services. Id. (basing decision on IDEA mandate that child’s school district make appropriate educational program available to child at no cost to child’s parents).

Similarly, in the case at hand, the Impartial Hearing Officer has the authority to direct the Board of Education to provide prospective payment of John’s tuition, notwithstanding any state statutes that might limit the Board of Education’s ability to agree to make such payments in the absence of a decision from an Impartial Hearing Officer. The Board of Education’s obligation to pay for John’s tuition in this case is indistinguishable from its obligation to pay tuition in a Carter case. See Connors, 34 F. Supp.2d at 805 (timing of payment does not alter fact payment is owed); Sabatini at *4 (timing of payment is distinction without a difference). The award of prospective payment of tuition in this case, where a family cannot front the costs of tuition, raises no novel issues and is a necessary equitable remedy to insure that this child receives a free and appropriate education.[7]

In sum, John XXXX’s family has satisfied the prerequisites to the award of prospective payment of his tuition at the Cooke Center program as set forth in Carter and Connors in that: (i) the New York City Board of Education concedes that it was unable to provide John an appropriate placement in an approved private school as required under his 1999 IEP, Tr. 57:19-58:7; Ex. N; (ii) John XXXX’s family presented substantial evidence that the Cooke Center program is appropriate for John and provides John an education in accordance with the 1999 IEP, which evidence was not refuted by the Board of Education, see Point III, infra; and (iii) John XXXX’s family introduced uncontroverted evidence that it does not have the funds to pay John’s $24,950 tuition on a prospective basis, given the family’s lack of financial assets and reliance on public assistance as its sole source of income. Tr. 70:8-72:12; Ex. R. Such facts are sufficient to require an award of prospective payment of John’s tuition at the Cooke Center for the 1999-2000 school year, given that such relief is the only relief available that will insure that John receives the free and appropriate education to which he is entitled under federal law.[8]

D. The Supremacy Clause Overrides Any
State Law Restrictions Against Prospective Payment

Given the supremacy of the rights guaranteed by the IDEA over the restrictions of any New York state statute or regulation regarding the education of individuals with disabilities, the New York City Board of Education cannot offer any substantive or procedural reasons that would prevent or excuse it from complying with an order to provide prospective payment of John’s tuition at the Cooke Center.

As provided under the United States Constitution and United States Supreme Court precedents, the substantive mandates of the Individuals with Disabilities Education Act prevail over any New York State or local statutes, rules or regulations that would prohibit the New York City Board of Education from providing prospective payment of John XXXX’s tuition. Under the Supremacy Clause of Article VI of the United States Constitution, a state may not pass laws or issue regulations that would limit the scope or directly contravene the mandates of a federal law such as the IDEA. See Paul Y. v. Singletary, 979 F. Supp. 1422, 1426 (S.D. Fla. 1997). Courts have routinely held that a child with a disability is entitled to the rights and protections guaranteed by the IDEA notwithstanding the existence of state law limiting or contravening such rights. See, e.g., id. at 1426 (concluding the IDEA trumps conflicting state law); Mrs. C. v. Wheaton, 916 F.2d 69, 73 (2nd Cir. 1990) (Education of the Handicapped Act case). Specifically, as discussed in Point I, supra, the United States Supreme Court has firmly established that the substantive guarantee under the IDEA of a free and appropriate education for every child with a disability prevails over any procedural obstacles found in the statutory provisions of the IDEA or local rules, such as the requirement that an appropriate school meet the standards of a state educational agency. See Point I.A. supra. As recognized by courts and state review officers in the Second Circuit, the Supreme Court holdings in Burlington and Carter preclude the defense that a board of education cannot be ordered to pay tuition for a non-approved school because New York State law restricts its ability to make such payments. See, e.g., Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 127 n.2 (2d Cir. 1998) (acknowledging that Carter opinion rejected the argument that a school district could not reimburse tuition for a non-approved school); Application of the Board of Education of the City School District of the City of New York, Appeal No. 97-78 (N.Y. Office of State Review) (rejecting Board of Education argument that state statutory limitations on use of funding prevent IHO from ordering Board of Education to pay preschool tuition for non-approved school). In short, the New York City Board of Education cannot evade its obligation to provide John XXXX a free and appropriate education through the prospective payment of his tuition at the Cooke Center by using procedural guidelines as a shield, whether those procedures exist at the federal, state or local level.[9]

POINT II

THE COOKE CENTER PROVIDES JOHN XXXX
WITH AN APPROPRIATE EDUCATION IN CONFORMANCE
WITH HIS INDIVIDUALIZED EDUCATION PROGRAM

As demonstrated by the evidence introduced at the impartial hearing, the Cooke Center program that John is attending for the 1999-2000 school year provides John with an appropriate education. In particular, the program accords with the recommendations in the 1999 IEP, and John already has demonstrated substantial benefits from his attendance.

John’s curriculum at the Cooke Center program is uniquely tailored to address his abilities and special needs. John is primarily placed in the level four classroom, which consists of nine children, a teacher, a teaching assistant and a paraprofessional, in accordance with the 1999 IEP recommendation. Tr. 99:21-99:25, 100:5-100:8; Ex. E at 7 (recommending class size of 12:1:1 or smaller). John receives his academic and non-academic instruction with other children within three years of his age. Tr. 81:19:-81:20, 101:20-101:21 (math and reading taken with children ages 11 to 12), 81:18-81:20, 101:20-101:21 (other academics taken with children ages 13 to 16), 100:15-100:20 (non-academics taken with 6th and 7th graders at St. Joseph’s).

John’s education program is designed to promote his instruction and interaction with other children with similar disabilities and functioning levels. All but one of the children in John’s level four class are diagnosed with a learning disability. Tr. 101:24-102:8. John is placed in a small-group setting in the level three classroom for his math and reading instruction, which are the only skills targeted in the 1999 IEP, in order to educate him among other children at his academic level. Tr. 101:20-101:21, 116:13-117:12 (students in reading program are pre-primer, math students are at first-grade level). John remains with the level four class for all other academic instruction, where he can learn based on the manner the information is being provided in the classroom, regardless of his reading level. Tr. 122:19-123:13. John also is provided speech and language services 90 minutes each week in a group of three students, in accordance with the 1999 IEP. Tr. 87:20-87:24, 105:1-105:3; Ex. E at 9 (mandating speech and language services for 80 minutes weekly in group of three).

The Cooke Center program also provides regular opportunities for inclusionary activities with the non-disabled students at the St. Joseph’s School. Tr. 81:24-82:5. John is placed with the St. Joseph’s sixth-grade students for homeroom and lunch, and with the seventh grade students for music, gym and computers. Tr. 100:16-100:20. In addition, John is included in a weekly drama and acting program with his level four classmates in which St. Joseph’s students are included through reverse mainstreaming. Tr. 106:14-107:18. Overall, the Cooke Center program is uniquely able to address John’s low academic abilities and his relatively high level of social skills by providing math and reading instruction in the level three classroom and placing him in the level four classroom and St. Joseph’s mainstream classes for other academic and non-academic coursework.. Tr. 83:11-84:11, 85:13-86:7, 101:9-101:23 (describing “hybrid” program developed specifically for John).

John has demonstrated substantial academic gains and other benefits from the Cooke Center curriculum, which is based on the goals set forth in the 1999 IEP. In just a few months, John already has achieved his math goal of adding two-digit numbers without regrouping, and is actively working on the remaining goals of adding and subtracting with regrouping. Ex. E at 6D; Tr. 110:11-110:22, 73:15-73:23. John’s reading program addresses the 1999 IEP long-term and short-term goals to learn decoding rules, and John already has mastered the decoding of words with short and long vowel sounds and consonant clusters, two of his short-term goals. Ex. E at 6C; Tr. 108:2-109:6, 112:18-113:9. John’s acquisition of word meaning is addressed on a continual basis through classroom activities such as journal writing and the drama and acting program. Ex. E at 6A; Tr. 112:4-112:10. John also receives instruction in the acquisition of pragmatic language skills in the classroom setting and through his work with a counselor, and John’s speech therapist assists him to improve word-finding ability. Ex. E at 6B; Tr. 111:25-112:3, 112:11-112:17. John also has demonstrated significant gains in his social skills and behaviors since he began attending the Cooke Center program, as observed by his teachers and his mother. Tr. 114:2-115:17, 73:24-74:8 (John’s mother describing the “incredible change” in John’s social behavior since attending Cooke), 88:18-89:6.

CONCLUSION

Given the limited resources of John’s family and their inability to pay for him to attend private school, to deny prospective payment of John’s tuition would deny John a free and appropriate education. For all of the reasons set forth above, John’s application for prospective payment to the Cooke Center should be granted.

CLEARY, GOTTLIEB, STEEN & HAMILTON

By:___________________________
Thomas J. Moloney
One Liberty Plaza
New York, New York 10006
(212) 225-2000

- and -

NEW YORK LAWYERS
FOR THE PUBLIC INTEREST

151 West 30th Street, 11th Floor

New York, New York 10001-4007

(212) 244-4664

Attorneys for John XXXX

Of Counsel: Lisa Schweitzer

Kim Sweet

[1] The Cooke Center has admitted John into its program on the express condition that John’s family seek prospective payment of his tuition for the Cooke Center program from the Board of Education.

[2] The citations to exhibits herein correspond with the manner in which the documents were marked as exhibits at the impartial hearing held on January 24, 2000. A copy of each of the exhibits cited in this brief is provided in the accompanying Exhibit Compendium. All citations to a transcript refer to the transcript for the impartial hearing held on January 24, 2000.

[3] While John is eligible for a twelve-month program under the 1999 IEP, he currently is enrolled in a ten-month program at the Cooke Center for administrative reasons; however, the Cooke Center is able to provide John a summer program for the summer of 2000, provided that he has funding. Tr. 86:23-87:1, 87:13-87:19.

[4] A copy of each case cited in this Memorandum is provided in the accompanying Case Compendium.

[5] In the current proceeding, the New York City Board of Education concedes that it cannot provide an appropriate education for John, and substantial evidence was introduced at the hearing demonstrating that the Cooke Center provides him an appropriate education, as set forth in Point III, infra.

[6] The Connors court found that the plaintiff in that case had not offered any evidence of financial inability to pay the tuition for her child, and therefore denied prospective relief in that instance. Connors, 34 F. Supp.2d at 806.

[7] The IDEA makes clear that both the State and the Board of Education bear responsibility for ensuring that John receives a free and appropriate education. To the extent the Board of Education takes the position that state law or policy limits its ability to make prospective payments to non-approved schools, the Board of Education should direct its arguments to the State; however, John’s entitlement to a free appropriate education may not be held hostage to such a dispute between two responsible entities.

[8] The Board of Education has established no equitable grounds for not paying John’s full tuition amount. The Board of Education bears the burden of proof to establish that a tuition payment amount is financially excessive. Application of a Child With a Disability, Appeal No. 97-10 (N.Y.S. Office of State Review). In this case, the Board of Education has failed to offer any evidence that the tuition is excessive, and to the contrary, the evidence indicates the tuition is significantly less than the cost of the program in which John is enrolled. Tr. 91:17-92:1, 95:19-96:3; Ex. AA (actual cost of program exceeds tuition by $7,000 per student). The Board introduced no evidence comparing the tuition at the Cooke Center to the tuition at other non-public schools, but even if it had, such evidence would have little value in the absence of evidence that the comparison schools could provide an appropriate program for John.

[9] An argument by the New York City Board of Education that the prospective payment of John XXXX’s tuition would violate state law would be especially ironic in light of the New York City Board of Education’s willingness to violate the state statutory mandate that works in John’s favor -- the requirement that the Board of Education provide John XXXX with a timely placement in an appropriate school. See, e.g., New York Educ. Law, Art. 89, §4402.1.b.(1)(d) (requiring the board of education to establish necessary committees “to ensure timely evaluation and placement of students with disabilities”); § 4402.2.a (“The board of education . . . shall be required to furnish suitable educational opportunities for children with handicapping conditions by one of [the services or programs mandated by statute].”)

PRELIMINARY STATEMENT

FACTUAL BACKGROUND

THE COOKE CENTER PROVIDES JOHN XXXX WITH AN APPROPRIATE EDUCATION IN CONFORMANCE WITH HIS INDIVIDUALIZED EDUCATION PROGRAM

CONCLUSION

THE COOKE CENTER PROVIDES JOHN XXXX
WITH AN APPROPRIATE EDUCATION IN CONFORMANCE
WITH HIS INDIVIDUALIZED EDUCATION PROGRAM