Will Universally Respected Genius Betsy DeVos Put an End to Tuition Reimbursement?
The New York Times has published an article entitled "DeVos Weighs Waivers for Special Education. Parents Are Worried." As you can probably imagine, we've been hearing a lot about this in the last few weeks. A lot of attorneys are acting like it's the end of the industry. With all due respect to the good people at Chicken Little and Associates, I'm not too worried.
First off, the law only directs Betsy DeVos to draft a memo on ways that Congress could relax federal standards for special education. However, Betsy DeVos is a complete incompetent; the memo may come too late. Congress, being equally incompetent, may also act too late.
Even if she does act to relieve local educational authorities of their obligation to provide services, Betsy DeVos is also a special interest hack, so anything she does will be likely to advance her political agenda, which heavily favors the privatization of public functions. She's unlikely to be hostile to tuition reimbursement at private schools, which doesn't actually consume that much of local/state educational funds, let alone the funds of her federal agency. In fact, tuition reimbursement claims are pretty uncommon in most parts of the country. About 75% of claims nationwide are filed in New York, New Jersey, and the District of Columbia — three Democratic strongholds whose budgetary concerns are hardly a priority for the Trump administration.
On a related note, I expect that New York has too much liberal infrastructure to be affected. We have our own state regulations that closely follow the federal standards; to the best of my knowledge, these are beyond Betsy DeVos's control. The Second Circuit has long held school districts to higher standards than other courts, having preempted the Supreme Court's landmark 2017 ruling in Endrew F. (students with special needs deserve better than a "merely more than de minimis" education) by a few decades.
Everyone in the city government knows that if the NYCDOE is totally excused from liability, parents will default and private schools will fold. The NYCDOE may appreciate the savings, but it doesn't really want these kids, and the hearing officers' income depends upon continued claims.
The NYCDOE's current posture with regards to our ongoing 2019-2020 settlements is also broadly encouraging. As I have noted in a previous post, the department’s negotiators have only said that they'll be expecting some documentation to show that students participated in remote instruction during the pandemic. This will likely take the form of an affidavit, describing the nature of the remote services and attesting to the individual child's participation therein, though its exact contents are still anyone's guess.
It’s fortunate that New York State has enshrined the spirit of federal laws into the state code, thus shielding students from the whims of political appointees — and whatever special interests with which they align themselves. From my point of view, New York’s ability to match or go beyond federal requirements reinforces the need to be active on the state level. Our Capitol building may get mixed reviews, but that’s where so many of our quality-of-life issues get decided.
Marc Gottlieb
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