Federal Court Vacates SRO home schooling decision

H.C. v. Colton-Pierrepont: This is a case of particular interest to home schoolers in New York State. The case was originally a parent challenge to the district’s recommended reduction in frequency of related services. The parent prevailed at hearing. On appeal, the district prevailed, but more importantly, the SRO advised that districts were not permitted to provide special education services to home schooled kids. This issue had not been raised, briefed or argued by either of the parties. Federal District Court Judge Hurd vacated the SRO decision. Although he decided the case on other grounds, he criticized the SRO for “depriv[ing] both parties of due process because he failed to inform them that he intended to rule on the rights of home-schooled students to receive special education services – an issue that neither party raised nor briefed.” Judge Hurd noted that “[t]he SRO also exceeded the scope of his authority because “[t]he decision of the State Review Officer shall be based solely upon the record before the State Review Officer . . . .” N.Y. Comp. Codes R. & Regs. tit. 8, § 279.12(a) (2008). Neither party mentioned or submitted evidence concerning the ability of home-schooled students to receive special education services.“

On August 25, 2008, the district filed a notice of appeal to the 2nd Circuit.

Home Schooling alert: URGENT

Pursuant to the new law, any parent who wants her school district to provide special education services to her home schooled child must submit a written request by Wednesday August 6th. Please feel free to contact my office if you have any questions.

Right to attorney fees on settled cases

The Supreme Court in the Buckhannon case significantly limited the right to attorney fees in special education cases. There is an extensive and useful discussion of Buckhannon in the recently decided 1st Circuit case, Aronov v. Chertoff. This is not a special education case, but the reach of Buckhannon is extensive. Courts are applying its restrictive view to all fee recovery statutes. The court in the Aronov case discusses in detail the difference between and requirements for a consent decree that would give rise to fees and a private settlement that would not.

NYS restores the provision of special education services to home schooled kids

Until recently, New York State had for many years provided special education services to home schooled children. In January of 2008, State Ed. issued a directive ordering school districts to terminate special education services to home schooled children. State Ed. relied upon the State Review Office decision in Appeal number 07-043, a decision which is presently being appealed by the Law Offices of H. Jeffrey Marcus, P.C., and Joyce Berkowitz, Esq. In June, the Assembly and the Senate agreed upon language to restore services and sent a bill to the governor. On Monday July 7, 2008, Governor Paterson signed the bill and it is effective immediately. The full text of the bill can be found here.

CSE must identify specific school placement on IEP

In this important Virginia case, A.K. v. Alexandria, the district court upon remand from the 4th circuit awarded reimbursement to the parents for a private school placement finding that the school district's failure to identify a particular school on the IEP deprived the child of a FAPE.