Supreme Court autism education ruling upholds parents’ right to ‘day in court’ Commentary
Supreme Court autism education ruling upholds parents’ right to ‘day in court’
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Gary Mayerson [Director of the Autism Speaks Federal Legal Appeals Project (FLAP), a national pro bono initiative]: "While the 4-4 decision of the Supreme Court in Tom. F. creates no precedent except to continue the Second Circuit's underlying decision, it was clear from the arguments that one faction of the court was moved primarily if not solely by the obvious wealth of the plaintiff, and this dynamic was unfortunate, as it clouded the court's consideration of what would be the impact if it ever were to reverse the Tom F. decision.

Much of the argument focused on whether or not the Court should adopt a "presumption of competence" to protect school districts. This was puzzling as the High Court already had adopted this presumption when it rendered its decision in Schaffer v. Weast, placing the burden of persuasion on parents to prove that the school district's offered program was inappropriate. The Schaffer v. Weast presumption of competence is a rebuttable presumption. Had the Supreme Court ruled as New York City had requested, the court would have created an irrebuttable presumption. At least four justices concluded that Congress never intended to create an irrebuttable presumption that could never be overcome, no matter how demonstrably inappropriate the IEP was.

The legal impact of a 4-4 decision is a relief for families living within the Second Circuit, since the underlying decision in Tom F. stands. Interestingly enough, just this week, the Supreme Court denied certiorari in Frank G., which was considered a companion case to Tom F. Once again, Justice Kennedy recused himself.

In my view, the legal impact of the 4-4 decision is that the Circuit courts will now have to address and wrestle with the practical implications of ever adopting a rigid rule requiring parents to "try out" a demonstrably inappropriate IEP as the price of admission to the courthouse door. In New York City, many parents are forced to sue for relief because they don't even get an IEP from the school system–even after attending an IEP meeting. What, if anything, is there to "try" when nothing is offered? In other instances, a child diagnosed with an autism spectrum disorder will receive an IEP recommending a grossly inappropriate placement in a school for the emotionally disturbed. Or, a child who is succeeding with support in an inclusion or mainstream classroom with typically developing children will receive an IEP recommending placement in a far more restrictive, self-contained classroom. Does a parent have to agree to violate the "least restrictive environment" sections of IDEIA to ostensibly comply with other, less than clear procedural requirements in the same statute?

The 4-4 decision undoubtedly will spark additional discussion and debate. There are other "Tom F." type situations waiting in the wings, albeit involving families without the financial wherewithal of Tom Freston. Ultimately, I am hopeful that when the other circuits and the high court next consider the issue, the discussion will shift from the purely theoretical to the practical i.e. what really happens in the IEP process.

It is hard to accept the fact that loving and caring school districts acting in complete good faith can still sometimes make horrendous mistakes. But unfortunately, especially in urban areas like New York City, potentially disastrous IEP situations happen on a daily basis. With the rebuttable presumption of competence already provided by the high court's decision in Schaffer, there already is a fair balancing of interests that protects the school district while at the same time allowing the aggrieved parent to try to meet his or her burden to prove that the local educational agency has not done its job. If the parent fails to meet that burden, the parent will not prevail, and the case will be dismissed. Where there is a deprivation of FAPE, there must be continued access to the court system to ensure the provision of due process. That is, in essence, what the holding in Tom F. is all about–receiving one's day in court. It is hard to believe that parents were only one vote shy of having that right taken away."

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