On February 1, 2011, a Manhattan Federal Court Judge rendered a decision in D.A. v. New York City Dept. of Education, 09 Civ. 5097 (S.D.N.Y. Feb 1, 2011) that reaffirmed a family's right to seek and obtain "direct" tuition funding for a private school education where the family proves that the local school district failed to provide a free and appropriate public school education (FAPE) to the student.

For many years, the courts have generally recognized the right of parents to seek reimbursement of private school tuition under the Individuals with Disabilities Education Act (IDEA).  However, parents who could not financially afford to pay the cost of private school have relied on an Impartial Hearing Officer, State Review Officer or federal court, to order a school district to pay the tuition directly to the private school when a determination has been made that the local school district did not provide a FAPE to the student.

In this case, although the New York State Office of State Review held that there was no legal right to obtain direct tuition payment under the IDEA statute, in his recent decision Judge Gardephe stated:

"A contrary ruling would be entirely inconsistent with IDEA's statutory purpose, including the goal of ensuring a FAPE to the least privileged of the disabled children in our nation.  Such a ruling would also be irreconcilable with decades of case law...holding that the exercise of rights under IDEA cannot be made to depend on the financial means of a disabled child's parents.  Limiting the right of unilateral withdrawal...only to those with the financial means to pay the cost of private school tuition...is entirely antithetical to IDEA's universal guarantee of a 'free appropriate public education' to all children with disabilities, regardless of means."

The type of funding addressed in this recent decision is typically known as "Connors" funding where a school district is ordered to pay the cost of tuition and related costs  directly to a private school.  Tuition reimbursement to a parent who has already paid the cost of private school tuition is typically referred to as "Carter" funding.

Although NYCDOE may very well elect to appeal this case, we believe at the present time, this decision is a very welcome win for parents who continue to advocate for an appropriate education for children with special needs.  It sends a message that all children, regardless of their economic status should be afforded a free and appropriate education.