Wednesday, March 31, 2010
Matter of Board of Education Bay Shore Union Free School Dist. v. Thomas K, ____N.Y. 3d___(March 30, 2010), is a major special education decision. The Court held that where a student is entitled to a one on one aide under the IDEA, it must be provided to a student even if he or she enrolls in a private school. As the Court stated:
Education Law § 3602-c, known as the dual enrollment statute, requires the provision of special education programs "on an equitable basis" to students who attend nonpublic schools (Education Law § 3602-c [b]). That statute also provides that "[p]upils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools" (Education Law § 3602-c ). Bay Shore argues that it does not have a statutory obligation to provide such services to students at their nonpublic schools.
In Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder (72 NY2d 174 ) we determined that the dual enrollment statute requires neither that educational services be provided at a student's nonpublic school, nor that they be provided at the public school. Rather, Wieder recognized that the purpose behind the statute was to allow private school students with disabilities "equal access to the full array of specialized public school programs" and that, if the student received those services in the public school, the student should be integrated with, rather than separated from, other public school students (Wieder, 72 NY2d at 184). The Court recognized that where the services must be provided should be determined based upon the child's "individual educational needs in the least restrictive environment" (Wieder, 72 NY2d at 188).
Although the dual enrollment statute does not mandate that the School District provide services at a nonpublic school for each student, that does not end the inquiry. Applying Wieder to this case, the pertinent question is what the educational needs of this student require. Both the IHO and the SRO essentially found that, in order for this child to receive a free appropriate public education, the services of an individual aide would have to be provided at his nonpublic school. The fallacy of the School District's position is that it advocates for the student, under the tutelage of an aide, to be kept focused and on task at a site removed from his own teacher and classmates, and indeed, from his regular school. As a practical matter, if the School District's position were upheld, it would be necessary for the child to withdraw from the school [*4]his parents selected for him in order to receive the required services. Under these circumstances, the courts below properly determined that the School District was required to provide the one-on-one aide at the student's private school.
Mitchell H. Rubinstein