This is big news: A federal judge just ruled that families who can't front tuition can still ask for private school funding. Attorney Mark Gutman says it could help any family whose child was denied an appropriate education and who can't risk signing a private school contract.
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The short version:
The family won its case. DOE didn't dispute that the child went without the school his IEP called for.
The family still got nothing, because they hadn't signed a contract with a private school.
On September 25, a federal judge, a Trump appointee, said that's wrong and sent the case back.
Why it matters: Families who couldn't pay private school tuition up front could win their case and still walk away empty-handed. A federal judge just rejected that reasoning.
Judge Mary Kay Vyskocil called the state's reasoning — that nobody could determine whether the school suited the boy until he went there —"Kafkaesque."
Driving the news: The boy's IEP called for a state-approved private special ed school. DOE never found one.
A private school offered him a seat, as long as someone paid. His parents couldn't cover the cost. They also wouldn't sign a contract promising to pay, fearing a debt they could never settle if they lost.
An hearing officer (IHO) agreed DOE had failed the boy, then ruled the family had no right to ask for payment, since they never signed. The state's appeals officer agreed.
Zoom in: On September 25, Judge Mary Kay Vyskocil of the U.S. District Court in Manhattan called the state's reasoning "Kafkaesque." Under that rule, nobody could judge whether the school suited the boy until he went there. His parents couldn't send him there without a ruling first.
A family's inability to front tuition, she wrote, "does not mean they are ineligible for relief."
What the family gets: The case goes back to a hearing officer to set make-up services. "This is a child who was entitled to an education but didn't receive it for the entire year, and now we're two years removed from that," said Mark Gutman, the family's lawyer.
"So something substantial needs to be ordered to get this kid back to where he should have been had he been receiving an appropriate education all along. That would likely be a significant amount of services."
This family won't get the private school seat. That school year is over. But the next family in their spot may have a real shot.
This decision is extremely helpful.
What it means for parents: The ruling may reach more families than the D.S. case suggests. "It helps basically every single family that has been denied an appropriate education by their school district but are hesitant to sign a contract with a private school for hundreds of thousands of dollars," Gutman said. "It definitely doesn't only apply to students who are recommended for non-public schools."
In his view, two questions decide it: Did DOE offer an appropriate education? And would the private school be a good fit? "If the answer to both of those is yes, nothing stops a hearing officer from ordering the District to pay for the cost of the private school," he said.
A common example, Gutman said, is when "the child has an IEP that recommends non-public school, but the DOE cannot find any school and the child has an acceptance at a private school."
For those families, Gutman said: "You may have a right to funding in a private school of your choosing as long as you can show the judge evidence that the school would be appropriate if ordered and show that a seat is available."
Don't toss the contract yet. Corey Lederman's firm still has parents sign one to reserve a seat. The Sep. 25 ruling, he said, "gives parents the ability to request funding for a private school without needing to take on that risk in certain situations."
Timing matters. If you win after the school year ends, you get make-up services, not a school seat.
Keep in mind: Gutman says the ruling reaches hearing officers across the city. "I know it reaches all of them," he said. The state review officer, who hears appeals, "will often cite to both EDNY and SDNY decisions as binding precedent." Ask your lawyer about it by name: D.S. v. NYC DOE.
What other lawyers are saying:
Corey Lederman, Lederman Law LLC: "It brings common sense back to the process."
Nancy Rothenberg, Law Offices of Nancy Rothenberg: Most of her clients can't pay tuition up front. She called the decision "extremely helpful" and cited its language in a hearing already. “Many Connors schools have limited placements so we like to have programs ordered to be able to help children access their education," she said. (ed. note: See FAQ about Connors funding below).
Scott Cohen, Law Office of Scott M. Cohen PLLC: "This decision is extremely important because it confirms that families who cannot afford even the risk of having to pay a private school tuition can seek prospective funding when the DOE has failed to offer their children an appropriate education."
Laura D. Barbieri, The Law Office of Laura D. Barbieri, PLLC: "Timing changes the remedy." Her advice for families heading to a hearing:
— "Request compensatory education. Due process complaints must expressly request compensatory education as an alternate remedy to address what the child has actually or potentially lost." In other words, ask for make-up services up front, as a backup.
— Demonstrate appropriateness of the private school and the parents' financial need during the hearing." Show that the school fits your child and that you can't afford it.
— "Consider Injunctive relief. Evaluate whether injunctive relief is available while the school year is ongoing, particularly if the SRO decision is obtained within the school year." That's a court order that makes DOE act right away.
Anton Cohen, Law Office of Anton G. Cohen, P.C.: “I don’t think absence of a signed contract with a non-public school (NPS) is the problem. It’s always about what program did the DOE offer, what NPS a parent is interested in, and how prepared will be the NPS witness to speak about the student — given that they only met the student once, if at all. It is not easy to prove appropriateness of NPS for a student who is not enrolled in it.”
What to watch: Will DOE take this to a higher court? Gutman says the family is ready: "If the DOE wants to test this ruling in a higher court, we're happy to meet them there and make this ruling the controlling case law across New York, Connecticut, and Vermont."
We'll tell you if DOE appeals.
It confirms that families who cannot afford even the risk of having to pay a private school tuition can seek prospective funding when the DOE has failed to offer their children an appropriate education.
Side note on Judge Mary Kay Vyskocil
Judge Vyskocil is a Trump appointee and a former member of the Federalist Society, the conservative legal group that helped shape Trump's picks for the courts, including Justice Brett Kavanaugh. She graduated from St. John's University School of Law.
Before she became a federal district judge in 2019, she told a St. John's alumni magazine:
"I feel very strongly that being a lawyer is an honored and privileged profession and that each of us is entrusted with the responsibility to see that justice is afforded to everyone, most particularly those most in need. With our privileged position comes a responsibility to give back to the community, to strive to make a difference in the lives of people in need of assistance, and to make a meaningful contribution to our community."
Questions about Connors funding vs. Carter funding
What’s the difference between Connors funding and Carter funding?
Attorney Mark Gutman: Carter just means that the parents are paying the school's tuition directly and then seeking reimbursement for the costs incurred. For Connors, the parent is signing a contract with the school and confirming their obligation to pay, but are not actually paying (because they can't afford to) and are asking the hearing officer (IHO) to order the DOE to pay the school directly. It's a colloquial way of referring to these situations but it's not an official designation.
They're called that because Florence County School District Four v. Carter was the first case which determined that a school district could be required to reimburse parents for the cost of a private school even if the school does not have "district approval"; Connors v. Mills was the case that determined that even if the parent did not pay the school yet, the District can be ordered to pay the parent's debt, pursuant to a signed contract.
Is D.S. v. NYC DOE a Connors case or a Carter case?
Mark Gutman: This case is a third option — prospective funding without a contract. The student is not yet starting at the school and instead, the family is requesting the hearing officer to order funding to the school so that the student can begin attending. So it wouldn't fall under either Carters or Connors.
Is there a limit on Connors seats?
Mark Gutman: It just depends on the school. Some schools are happy to accept as many students with Connors funding as they have open seats, and others have a limited number (or none). It's just about the risk some schools are willing to take compared to others.
If I sign a private school contract and ask DOE to pay, am I really responsible for the tuition?
Yes. DOE only funds a private school when the parent is legally responsible for the tuition. Gutman said "the parent needs to be legally responsible for the payments." Some schools tell families not to worry about paying. That doesn't change the contract. "Technically they did sign a contract, so they are legally on the hook," he said. DOE representatives often ask parents at hearings, "Did anyone tell you that you were not responsible for the payments here?"
Can I get out of a private school contract if my child gets a public school seat?
It depends on the contract. "Many contracts have a clause that says that if the parent accepts a DOE placement before the first day of school, they can be released from the private school contract," Gutman said. "But I definitely can't say all of them do."
He won't let clients sign without that clause. "I would never tell a client to sign a contract unless it has that language," he said. Without it, "the DOE can argue that they never intended to consider a DOE school." That can hurt families on "the equities," the third part of the test hearing officers use to decide tuition cases.
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