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Thursday, December 3, 2015

Significant Special Education Legal Decision: Mass. SJC Rules Against Weston

From Wicked Local Weston

By Mike Champa
December 1, 2015

"... parents without the resources to hire attorneys and advocates (were put) at a distinct disadvantage."

On October 23, the Massachusetts Supreme Judicial Court (SJC) ruled against the Weston Public Schools and affirmed a lower court decision in a public records access case that could dramatically change the way school districts deal with the parents of special needs children.

The court ruled that the Weston Public Schools must allow public review of private settlement agreements they entered into with the parents of special needs children. The SJC decision brought an end to a three-year legal battle and ordered Weston to produce the documents for public review.

A Weston resident at the time, I was refused access to these records and brought the case. It was my contention that private settlement agreements have become the primary method used by Weston to transfer the cost of special education directly to parents, thereby avoiding the statutory requirement to provide what the special education laws refer to as “free appropriate public education.”

In addition, it was my position that these agreements obligated the town to the expenditure of millions of public tax dollars and the public had a right to review the terms of the agreements under the provisions of the Public Records Law.

Finally, it was my belief that if the agreements were reviewed it would confirm that all special needs children in Weston were not being treated equally, and that parents were required to pay a large percentage of the cost associated with the education of their special needs children, putting parents without the resources to hire attorneys and advocates at a distinct disadvantage.

At no time was there a request to identify specific children, and all information was to be in a redacted form that eliminated all personally identifiable information.

In amicus briefs filed with the SJC, the American Civil Liberties Union, the Massachusetts Attorney General and the Massachusetts Department of Education all supported the notion of the public’s right to review redacted copies of settlement agreements. Weston had argued that the release of redacted documents violated student confidentiality laws; the high court disagreed.

On November 10, Weston released 23 agreements executed between 2006 and 2013; the most recent documents have also been requested. A review of the released documents paints Weston school administrators as unfair and inconsistent in their administration of Weston’s settlement process and in the administration of their special education program.

Several conclusions can be drawn from a review of the documents:

1.) Weston clearly was transferring the cost of special education directly to parents. Although the law is clear that these services are to be provided at no cost to parents, the agreements reviewed almost always required parents to pay upwards of 60 to 70 percent of the cost of tuition at special needs schools, even when no comparable program was available within the school system. This would be akin to Weston asking parents to pay for half the cost of high school Advanced Placement courses.

2.) While some parents were required to pay as much as 100 percent of special needs tuition, others fared better, some worse. In testimony provided in this case before the Superior Court, a prominent special needs school head stated that he often sees kids from the same town and with the same diagnosis get radically different deals from their local school district.

While parents freely entered into these agreements they will, arguably, be concerned that some students fared far better in the negotiation process than they may have and that Weston did not treat all children the same. Weston has argued that all children are treated as individuals and hence the agreements are all different.

While it is clear that all children are to be treated as individuals, the school system has not provided the financial support mandated in the law and has used this secret settlement process to reduce their financial obligation to educate children with special needs.

3.) Most agreements mandated that parents provide transportation costs. The special education law dictates that the communities provide transportation for special needs students.

4.) Almost all agreements had strict confidentiality provisions that prevented parents from sharing the information contained in their settlements. Those provisions are no longer valid now that the agreements are public.

5.) Students covered by these agreements had Individualized Education Plans (IEPs) in place, which typically detail the student’s learning disability and proposed placement. The special education laws obligate the school district to provide the necessary services required by the IEP, but the private settlement process allows school systems to circumvent the law (IEPs were not requested as part of the document review and remain confidential).

Parents have entered into these agreements for years believing that the negotiation of a settlement agreement was the fastest way to get the services their children needed. While dealing with Weston’s attorney can be cumbersome and stressful, the promise of services in exchange for a cost share was deemed acceptable as long as their child got the help they needed. It is fair to assume that parents believed that they were getting a fair offer from the school district, but the agreements show that that was often not the case.

It is important to understand that the SJC ruling does not prohibit settlement agreements but it does guarantee that parents have access to what their schools have done for others before they make a decision for their own child. More importantly, it will require Weston school administrators to answer for their decisions and to justify the treatment afforded to all children in the future.

..................................................................

Mike Champa is a former public high school teacher and the parent of a special needs child. He is a former board member of Cristo Rey High School in Boston.

3 comments:

  1. Thank you for your commitment to what, ultimately, is in the best interest of all children with special needs. It is one step in the right direction towards holding districts accountable for heinous decisions which damage children and their families.

    ReplyDelete
  2. That was brilliant work! So next we have to obtain the school or state contracts with the private schools (ch 766). Because if the schools are not allowed (by the state) to send children to those private schools without a "private settlement agreement" which you say varies significantly depending upon whether or not the parent had counsel, and this is the only way to obtain the "free and appropriate public education" then according to the case below would qualify as a class action suit against the state for violating the civil rights of children with special education needs and their parents. (see below)

    Rendell-Baker v. Kohn, 457 US 830 - Supreme Court 1982
    https://scholar.google.com/scholar_case?case=10176312845394846270&q=Rendell-Baker+v+Kohn&hl=en&as_sdt=40000006#[2]

    The school's provision of a substitute for public education deserves particular emphasis because of the role of Chapter 766. Under this statute, the State is required to provide a free education to all children, including those with special needs. Clearly, if the State had decided to provide the service itself, its conduct would be measured against constitutional standards. The State should not be permitted to avoid constitutional requirements simply by delegating its statutory duty to a private entity.[3] In my view, such a delegation does not convert the performance of the duty from public to private action when the duty is specific and the private institution's decision making authority is significantly curtailed.

    [3] The record does not contain details of the school's contract with the Brookline School Committee.
    [4] Title 42 U. S. C. § 1983 provides:
    "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

    [5] The Fourteenth Amendment provides, in pertinent part:
    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ."

    [7] There is no evidence that the State has attempted to avoid its constitutional duties by a sham arrangement which attempts to disguise provision of public services as acts of private parties. Cf.Evans v. Newton, 382 U. S. 296 (1966) (private trustees appointed to manage previously public park for white persons only).

    ReplyDelete
  3. That was brilliant work! So next we have to obtain the school or state contracts with the private schools (ch 766). Because if the schools are not allowed (by the state) to send children to those private schools without a "private settlement agreement" which you say varies significantly depending upon whether or not the parent had counsel, and this is the only way to obtain the "free and appropriate public education" then according to the case below would qualify as a class action suit against the state for violating the civil rights of children with special education needs and their parents. (see below)

    Rendell-Baker v. Kohn, 457 US 830 - Supreme Court 1982
    https://scholar.google.com/scholar_case?case=10176312845394846270&q=Rendell-Baker+v+Kohn&hl=en&as_sdt=40000006#[2]

    The school's provision of a substitute for public education deserves particular emphasis because of the role of Chapter 766. Under this statute, the State is required to provide a free education to all children, including those with special needs. Clearly, if the State had decided to provide the service itself, its conduct would be measured against constitutional standards. The State should not be permitted to avoid constitutional requirements simply by delegating its statutory duty to a private entity.[3] In my view, such a delegation does not convert the performance of the duty from public to private action when the duty is specific and the private institution's decision making authority is significantly curtailed.

    [3] The record does not contain details of the school's contract with the Brookline School Committee.
    [4] Title 42 U. S. C. § 1983 provides:
    "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

    [5] The Fourteenth Amendment provides, in pertinent part:
    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ."

    [7] There is no evidence that the State has attempted to avoid its constitutional duties by a sham arrangement which attempts to disguise provision of public services as acts of private parties. Cf.Evans v. Newton, 382 U. S. 296 (1966) (private trustees appointed to manage previously public park for white persons only).

    ReplyDelete