Wrightslaw - The Special Ed Advocate Newsletter, March 29, 2000

1. Who Must Pay? Why Must States Take"The Bitter With The Sweet? (7^th Circuit, March 29, 2000)

On March 24, 2000, the Court of Appeals for the Seventh Circuit issued a decision in two Illinois cases:

* Board of Education of Oak Park and River Forest High School District 200 v. Kelly E. and Illinois State Board of Education.

AND

* T. H. v. Board of Education of Palatine School District No. 15 v. Illinois State Bd. of Education and Glenn McGee, Superintendent of Public Instruction.

(NOTE FROM WRIGHTSLAW: In T. H. v. Palatine, the District Court issued a strong decision about the appropriateness of an ABA program for a young child with autism. The decision in T. H. v. Palatine is one of the most frequently downloaded cases in the Wrightslaw Law Library. A link to the T. H. case follows)

The Court begins this decision with a question:

"Does the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400-87, entitle a local school district to reimbursement from the state for some or all of the expense when the district must reimburse parents for a child’s private education?"

In Bd. Educ. of Oak Park, the Judge ". . . concluded that Oak Park’s school district had made so many procedural and substantive errors in preparing an IEP for Kelly E. that her parents were entitled to reimbursement for private education."

In T. H. v. Palatine, the Judge ". . . enforced an administrative decision that T. H.’s parents are entitled to reimbursement for an intensive home-based educational program."

WHO MUST PAY?

Illinois "leads off with a flurry of objections" about the litigation. Illinois claimed that local school districts "lack standing," and "if the local school districts may sue, still the state is not a proper defendant given the eleventh amendment."

The Seventh Circuit concluded that these arguments were "feeble, individually and collectively."

STATE CLAIMS OF SOVEREIGN IMMUNITY

"Section 604(a) of the IDEA, 20 U. S. C. Sec. 1403(a), provides that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter."

"Illinois contends that abrogation exceeds Congress’ powers under Sec. 5 of the fourteenth amendment . . . but this is beside the point . . . States that accept federal money, as Illinois had done, must respect the terms and conditions of the grant . . . Congress did what it could to ensure that states participating in the IDEA are amendable to suit in federal court."

"THE BITTER WITH THE SWEET"

"Thus we hold that states must take the bitter with the sweet; having accepted the money, they must litigate in federal court . . . local school districts can’t piggyback claims based on state law."

"THE PRINCIPAL QUESTION"

". . . does the Act prescribe a particular allocation of expenses between local and state bodies?"

Read the full decision -- and get answers to this question

Read the T. H. v. Palatine decision

2. "Special Education Law: What Every Parent Needs To Know Transcript Available Now!

On Thursday, March 23, Pete and Pam Wright were guests at HealthyPlace.com for an online conference about special education law: Special Education Law: What Every Parent Needs to Know.

We spent nearly two hours answering questions in this moderated discussion. Many people wrote to say they were unable to attend.

We are happy to report that you can get the transcript of "Special Education Law: What Every Parent Needs to Know" at HealthyPlace.com.

While you’re there, check out the resources. HealthyPlace.com is an impressive site that offers information and community. You can get an overview of the resources at

Go for a “WebTour” !

3. Editor's Choice From The Bookstore

Many readers write with questions about law and litigation:

"HELP! I just requested a due process hearing -- now what should I do?"

"HELP! You say we must write letters to document the problems we are having with the school. Why?"

REPRESENT YOURSELF IN COURT: HOW TO PREPARE AND TRY A WINNING CASE by Paul Bergman & Sara Berman-Barrett.

Parents often "shoot themselves in the foot" when they negotiate with the school for services. If you are thinking about due process, you should read "Represent Yourself in Court." This will help you understand the process of litigation, and how to prepare and present your case.

One reviewer wrote:

"As a fourth year law student, this book is better than the books I have studied. I recommend this book not only for the lay person, but also for law students and new attorneys. This book takes you step by step through the Court system, explains how to bring a case into court, and how to present and win that case. The references are excellent!

Looking for a good book about IEPs?

Our top choice is "BETTER IEPs" by by Barbara D. Bateman and Mary Anne Linden

"The heart of the law is the child's written Individualized Educational Program (IEP).

"Better IEPs" gives special educators, regular educators, and parents the confidence and know-how to develop IEPs that are both legally correct and educationally useful. Many IEPs are neither!"

Check out "How to Represent Yourself in Court," "Better IEPs" and other good books in the Legal Section of the Advocate’s Bookstore -

https://www.wrightslaw.com/bkstore/bks_law.htm