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November 21, 1991


The opinion of the court was delivered by: Goettel, District Judge.


The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq., requires participating state and local educational agencies "to assure that handicapped children and their parents or guardians are guaranteed a free appropriate public education." Id. § 1415(a). In addition, IDEA gives the parents of handicapped children the right to participate in the development of an "individualized education program" ("IEP") for the child and permits them to challenge in administrative and court proceedings a proposed IEP with which they disagree. Id. § 1401(19), 1415(b), (d), (e); School Committee of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 361, 105 S.Ct. 1996, 1998, 85 L.Ed.2d 385 (1985). Because cases which challenge the child's IEP take years to run — critical years in the child's educational development — practical questions "concerning interim placement of the child and financial responsibility for that placement" arise. Id., 471 U.S. at 361, 105 S.Ct. at 1998. We are confronted with these questions today.


The plaintiff, Jack Straube III ("Jack"), has a physical condition called dyslexia which is "a developmental disorder selectively affecting a child's ability to learn to read and write which creates educational problems." Bantam Medical Dictionary (Bantam Books 1982). The dyslexia is compounded by a condition known as attention deficit disorder. As a result of this condition, Jack is classified as "learning disabled" within the meaning of the Act, 20 U.S.C. § 1401(1), and is entitled to receive, at public expense, specially designed instruction to meet his unique needs.*fn1 Throughout most of his schooling, Jack has been classified as learning disabled and was therefore receiving an IEP from the Florida Union Free School District ("District"). Although, during the 1990-91 school year, Jack would have been placed in the tenth grade in the public high school, test scores showed that he read only at a third grade level. If Jack had continued in the public school system for the 1990-91 school year, his IEP would have been similar to that of prior years, which have not produced any degree of success in his reading progress. Frustrated with the District's failure, Jack's parents, Jean and Jack Straube, Jr., challenged his IEP as "inappropriate" and sought to place him in the Kildonan School in Armenia, New York. Kildonan is a residential school with a high degree of success in teaching dyslexic children to read. An impartial hearing was conducted to review the IEP.

It appears that shortly after the hearing commenced, the District entered into negotiations with the Straubes, indicating that it had approved the placement of Jack at Kildonan. The Straubes began the enrollment process. Subsequently, they were informed by the District that it could not authorize the Kildonan placement because the school was not "approved" by the State Education Department (SED). Unable to locate an approved school, the Straubes nevertheless enrolled Jack at Kildonan.

At the hearing, the Straubes requested that the impartial hearing officer ("IHO") direct placement at Kildonan and the reimbursement of tuition that the Straubes had already spent. Although the IHO concluded that the District's IEP was "inappropriate," Jack could not be placed in Kildonan because the school was not approved by the Department. Additionally, the IHO found that "no private school either within or without the state dealing with this child's severe learning disability, at his chronological age, is registered as an approved school." The IHO then remanded the case back to the District's Committee on the Handicapped to reformulate Jack's IEP for the 1990-91 school year. The Straubes began this suit to challenge the IHO ruling which denied both Jack's placement at Kildonan and the reimbursement of his tuition.


IDEA sets up a complicated scheme where, by meeting certain requirements, states receive funds with which to provide all handicapped children with a free and appropriate education. The purpose of this ambitious statute is to:

  assure that all children with disabilities have
  available to them . . . a free
  appropriate public education which emphasizes
  special education and related services designed to
  meet their unique needs, to assure that the right
  of children with disabilities and their parents or
  guardians are protected, . . . and to assess and
  assure the effectiveness of efforts to educate
  children with disabilities.

20 U.S.C. § 1400(c) (1988); see Board of Educ. of the Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 179-184, 102 S.Ct. 3034, 3037-39, 73 L.Ed.2d 690 (1982). The act defines "free appropriate education" to mean:

  special education and related services that
  — (A) has been provided at public expense, under
  public supervision and direction, and without
  charge, (B) meet the standards of the State
  educational agency, (C) include an appropriate
  pre-school, elementary, or secondary school
  education in the State involved, and (D) are
  provided in conformity with the individualized
  education program required under § 1414(a)(5) of
  this title.

20 U.S.C. § 1401(18) (1988). Free appropriate education requires "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203, 102 S.Ct. at 3049.

The state has the option of providing free public education in private schools and facilities, upon reference from state or local educational agencies. 20 U.S.C. § 1413(a)(4)(B)(i) (1990). In such instances, "the [s]tate educational agency shall determine whether such schools and facilities meet standards that apply to [s]tate and local educational agencies." Id. § 1413(a)(4)(B)(ii). Accordingly, New York permits placement in private residential schools both within and without the state provided that the school has been approved by the Commissioner of Education. N.Y. Educ. Law § 4402(2)(b)(2) (McKinney 1981 & Supp. 1991). Although the procedure is not dictated by any federal or state statute, approval is obtained upon application by the school to the Commissioner and the state's subsequent determination that the school complies with state laws and regulations.

From the student's perspective, implementation of the Act is based on the student's IEP. The IEP is basically a comprehensive statement of the educational needs of the handicapped child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. ยง 1401(19) (1990). The IEP is developed by a group of individuals, namely, a representative of the appropriate state or local agency, the child's teacher, the child's parents, and where appropriate, the child himself. Id. According to the statute, the IEP must contain, among other things, a statement of the child's present level of educational performance, a statement of annual goals, a statement of the specific services to be provided to the child, and a statement of ...

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