On September 23, NYLAG’s Special Education Unit won an important victory in the Southern District of New York. As a result of Judge Paul A. Crotty’s decision in A.R. v. NYC Dept of Educ., it is now much more likely that all disabled children from low-income families will receive the free appropriate public education guaranteed them under federal and state law.

The case concerned a mother who, after determining that the Department of Education (DOE) could not provide her daughter with an appropriate education, enrolled her in a private school. The mother then sought funding from the DOE, first through an impartial hearing, then through an appeal to a higher administrative entity, and finally through an appeal to federal court. Like all low-income parents, the mother could not afford to pay the tuition upfront and wait to be reimbursed if she won her case. Instead, if she won, she needed the DOE to directly pay her child’s tuition to the private school.

“Judge Crotty’s decision is a wonderful victory for all disabled children whose parents have struggled with the roadblocks created by the DOE for families who do not have the financial wherewithal to pay a private school’s tuition.” said Laura Davis, Director of NYLAG’s Special Education Unit. “This decision sends a strong signal that a child’s access to a free and appropriate public education cannot be made to depend on his or her family’s financial ability to pay up front the costs of private school tuition.”

In the A.R. case, the DOE contended that the mother “did not adequately demonstrate her inability to pay” the $44,500 private school tuition – despite the undisputed evidence that the mother had an annual income of less than $7,000 and no financial support from her child’s father. This is a strategy frequently employed by the DOE, which often suggests that a low-income parent has not made it clear “enough” that she/he is, in fact, not in a financial position to “front” a private school’s tuition.

In his opinion, Judge Crotty found that the need for verification of the mother’s income was unnecessary, and said: “[C]ommon sense would suggest that as a resident of a neighborhood in the South Bronx that is one of the poorest in New York City, she could not afford to pay $44,500 in annual tuition … Presumably, the DOE””as the City’s agency responsible for schooling in that area””is aware of this.”

A.R. v. NYC Dep’t of Educ. also addressed the DOE practice of alleging that low-income parents have entered into “sham” contracts with private schools. Unlike parents who have financial resources and can sign a contract with a private school that dictates that they will pay the tuition according to an agreed upon schedule (with reimbursement from the DOE coming at a later date if they win their cases), low-income parents can pay little if any of the tuition while they await decisions. In such cases, the private schools’ contracts indicate, among other things, that the low-income parent must pursue her/his rights with the DOE, until the final authority (i.e., a federal court) has rendered a decision. If the low-income parent loses, she/he is liable for the tuition.

In A.R., the DOE argued “that neither [the mother] … nor [the school] intended [the mother] … to be truly bound by the terms of the contract,” thereby creating a “sham” contract. After discussion that the contract was not a “sham,” Judge Crotty wrote:  “[I]t would be a grave error to conclude from the fact that [the mother] … did not have the means to pay for a private placement that her daughter is precluded from receiving the free appropriate public education that the [law] … is intended to guarantee.”

“Judge Crotty’s strong language will help all low-income families should the DOE persist in alleging that contracts entered into by poor parents are a ”˜sham,’” said Phyllis Brochstein, Senior Staff Attorney with the Special Education Unit.

Finally, Judge Crotty addressed the issue of a parent’s “intent.” The DOE has long argued that a parent never intended to send his/her child to a public school, and thus would not have done so even if the DOE had offered an appropriate placement. Addressing that argument, Judge Crotty stated: “The DOE pretends to have peered into [the mother’s] … mind and ascertained that she ”˜never seriously considered sending [her child] … to a public placement.”  As a result of the A.R. decision, it is now clear that the alleged “intent” of a parent alone is not enough to defeat his/her claim for private school funding.

Lawyers from NYLAG representing the plaintiff were Ms. Davis and Ms. Brochstein.

Coverage of this decision was featured in the New York Law Journal.