At your school board’s first meeting of the NewYear, you anticipate a discussion of your district’s financial woes. You arrive at the meet-ing and, to your surprise, it is not the schoolbusiness official who looks the most haggard.The pupil personnel director, ordinarily peppy,looks frazzled and just plain worn out. You askher, “What’s the matter?” She sighs and shetells you to expect parents to bring up somespecial education concerns during the publicparticipation portion of the board meeting.

As predicted, the board gets an earful. Oneparent demands that the board guarantee thatall school buildings in the district be allergen-free zones. Another asks for permission tohave a behavioral consultant attend schoolwith her daughter for a week to prepare anevaluation to be shared with the Committeeon Special Education. The next speaker, a parent who has unilaterally placed her childin a private school and is seeking tuition reimbursement, begins to review, in excruci-ating and intimate detail, the nature of herson’s learning and psychological problems.The board president interrupts, saying something about a need to maintain confiden-tiality. The parent angrily replies, “It’s my child,and I have the right to talk about him.” Youwonder, “Can that be right?”

Issues involving special education often become sources of tension between parentsand districts, and sometimes lawsuits. Hereare answers to five common questions thatarise involving students with disabilities.

1. What’s confidential in a public meet-ing? Does a parent have a right to speak abouthis or her child’s disability during the public participation portion of a school board meeting?Pursuant to applicable federal and state laws,the facts and circumstances surrounding a student’s disability or their classification as a special education student must be treated by school officials as confidential. Accordingly,

certain information should not be revealed ordiscussed in public. On the other hand, a parentdoes have the legal right to waive this confi-dentiality on behalf of their child. (Such a waiver, if desired by the parent, should be obtained in writing.) But the answer here is thatthe school board decides what’s permissibleduring a public meeting.

First, school boards are not legally required tohear from the public at meetings, althoughpublic participation is commonly used to makegovernment more accessible. Boards also havediscretion to reasonably limit discussion in portions of the meeting that they designate aspublic participation. For instance, a board mayestablish a policy that confidential special education matters will not be discussed in public even if the parent offers to waive privacyrights. This avoids the risk of the parent turningaround and suing the board (on the groundsthat the waiver was not made knowingly) when,inevitably, some piece of information that the parent did not want revealed to the public is brought forward. [Editor’s Note: For model policy language, contact NYSSBA at policyservices@nyssba.org.]

2. When is a student entitled to privateschool tuition reimbursement? The U.S.Supreme Court has held that under certaincircumstances, public school districts are obligated to reimburse parents for the tuitionincurred in the parents’ unilateral placementof the student in a private school. Three conditions must be met:

Answers to Five Frustrating Questions Involving Special EducationBy the New York State Association of School Attorneys

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Robert H. Cohen

January 14, 2013

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• The school district has failed to provide a student with a free appropriate public education (FAPE) in the least restrictive environment that is appropriate to meet thestudent’s needs.

• The private school that the parent unilater-ally selected is appropriate to meet the student’s special education needs.

• The private placement would be equitablebased on the degree to which the parentcooperated with the district in evaluatingthe student and trying to develop an individualized education plan (IEP) that provides the student with FAPE.

It has become rare for courts to automaticallyequate inadvertent procedural errors with adenial of FAPE. Some evidence that the pro-cedural defect had an adverse effect on theparents’ participation and input in the CSEprocess is now required before an IEP will beinvalidated on procedural grounds. Also, thethird prong of the test is beginning to havegreater meaning as courts are drastically reducing tuition reimbursement or barring it all together if parents have been uncooper-ative or sabotaged the IEP process. Be sureto document items such as refusals to attendBOCES screenings and evidence that the parents were not forthcoming about whatservices they want for fear that the districtmight just provide it, ruining their plan to pursue private placement. Lastly, the courtshave begun applying least restrictive environ-ment standards to parentally selected privateschools, increasingly denying reimbursementwhere the private school selected by the parent is found to be too restrictive of mainstreaming opportunities.

3. Why isn’t (fill in the blank) in the IEP?Increasingly, parents are requesting thatschool boards pay for exotic or untested serv-ices, sometimes with the explanation thatother districts pay for such services. Such pro-grams may provide some ancillary benefit tothe student but often they are not sufficientlytied to the student’s educational program soas to warrant inclusion in the IEP. An examplewould be equestrian therapy, in which cogni-tively disabled students, particularly students

on the autism spectrum, learn to ride, groomand generally work with horses at a recre-ational facility that has stables and equestrianequipment. While there is literature that showssuch recreational activity is positive for thestudents, it is not a special education programor service within the definition of the regula-tions of the state commissioner of education.

4. Must we create/guarantee an allergen-free environment? The parents of students with food and other allergies areincreasingly demanding that districts ensurethat their children not be exposed to allergenson campus. In a case coming out of Indiana,the parents of a student with a severe “perfume” allergy sought a school policy banning the spraying of all fragrances onschool grounds. A federal trial court rejectedthis claim holding that such an approach wasnot a reasonable accommodation pursuant toSection 504 of the Rehabilitation Act, a federalantidiscrimination law.

More common allergies involve nuts or animals. When such allergies are known,should districts promise to provide an allergen-free school environment in a student’s IEP orSection 504 Plan? No, because such pledgescannot be kept. Furthermore, there is no legalrequirement to provide allergen-free cam-puses. Rather, the law says districts must takereasonable steps to minimize the student’schance of exposure to allergens and have a health plan in place to respond should thestudent be accidentally exposed and have anallergic reaction. Reasonable accommodationsshould be included in a student’s IEP or 504plan as appropriate. These include prohibitingcertain foods or items in the classroom, requiring students to wash their hands aftercoming in contact with an allergen and author-izing the use of an EpiPen in the case of anaccidental exposure.

5. What about parents or others observ-ing classrooms? Some districts have prohibited observers from classrooms, assert-ing that allowing the parent or the parent’sconsultant to sit in on the class would be a violation of the other students’ rights pursuantto the U.S. Family Educational Rights and Privacy Act (FERPA). Such an assertion,

however, is erroneous. In a Dec. 8, 2003 letter,the Office of Innovation and Improvement ofthe U.S. Department of Education (DOE)opined that “FERPA does not specifically pro-hibit a parent or professional working with theparent from observing the parent’s child in theclassroom.” Almost a decade later, no courtruling has contradicted this because FERPA issilent regarding classroom observations.FERPA generally only prohibits disclosure ofeducational records or information on a student’s educational record.

Equally inaccurate are claims that the U.S. Individuals with Disabilities Education Act(IDEA) guarantees parents the right to observetheir children in the classroom. A letter datedMay 26, 2004 issued by DOE’s Office of Special Education and Rehabilitative Servicesmade clear that there is nothing in IDEA whichguarantees the parent’s right to observe theirchild’s classroom or proposed placement options. However, DOE went on to point outthat one of the key purposes of the IDEA wasto strengthen and expand the role of parentsin the identification, evaluation and educationalplacement of their children. It was suggestedthat districts work out appropriate policies thatbalance the goal of meaningful parental participation with the disruption to instructionalservices in the classroom. One suggested wayto balance these interests would be to allowfor a single opportunity to observe the class-room for a specified and limited amount of time. The district should also receive reasonable advance notice of the parent’s request visitation.

Laws and regulations governing special edu-cation are complex, and clarifications emergeroutinely in DOE and SED advisories, as wellas court decisions. The wisest course of actionis to consult with your own legal counsel asto how best deal with special education issuesas they arise.

Members of the New York State Associationof School Attorneys represent school boardsand school districts. This article was writtenby Robert H. Cohen of Lamb & Barnosky, LLP.

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