"Schaffer v. Weast simply got the law wrong for New York"

New Law Gives Parents Power To Challenge School District
by Colin Gustafson, Assistant Editor
Queens Chronicle

August 23, 2007

Thanks to a new state law, parents of learning-disabled students now have more power to challenge their local school district when they think their child is getting shortchanged on special education services.
Gov. Eliot Spitzer signed a bill last week that puts the so-called “burden of proof” on school districts to show that disabled students are receiving all the necessary accommodations at their public school.
Under federal law, school officials must create personalized education plans for every student diagnosed with a disability — and parents have always enjoyed the right to challenge the officials’ recommendations if they think the services are inadequate.
Traditionally, New York State’s school districts had been responsible for defending their plan whenever a parent objected. But a 2005 U.S. Supreme Court ruling shifted that responsibility to the parent in every state — including New York — where the law does not clearly delegate the “burden of proof.”
The bill signed by Spitzer last Thursday delegates that burden to the district.
“Shaffer v. Weast simply got the law wrong for New York,” said Assemblywoman Catherine Nolan (D-Ridgewood) of the 2005 Supreme Court decision. “This new law restores to our ... families their ability to fairly advocate for their children’s educational needs.”
Advocates have long worried that school districts would cut back on services if they weren’t required to defend their assessments before a judge. The new law ensures that school officials live up to the federal mandate, while making it easier for parents to demand better, often pricier services.
However, the law stops short of giving parents the benefit of the doubt when a child’s condition may be so severe that it merits intensive private services — which the district must fund. In those cases, parents bear the burden of proof in court.
“The law strikes a balance between a parent’s desires for private placements and a school district’s obligation to pay for costly out-of-district services,” Spitzer’s office wrote in a statement. “The bottom line here is that we need ... a system that works in the best interest of children.”
The law comes as attorneys for the city’s Department of Education prepare to argue before the U.S. Supreme Court over when the city should be required to pay for disabled students’ private school tuition.
The department maintains that the city should only pay for private tuition once a family has tried enrolling a child in the recommended public school program before they deeming it unsuitable.
Advocates contend that the city’s policy denies some children immediate access to the services they need but can only get in private schools.