Dispute on private school payments heard By Mark Sherman, Associated Press Writer | October 1, 2007 "WASHINGTON --Taxpayers shouldn't be asked to pick up the cost of private schooling for special education children who don't first give public schools a chance, New York City's top appeals lawyer told the Supreme Court Monday. Arguing on the first day of the court's new term, Leonard Koerner urged the justices not to make it easier for parents to be reimbursed for private schooling in situations where school districts contend they can take care of children's special needs. The parent in the case before the court "had no contact with the system at all," Koerner said. There is no question that the wealthy parent in this case, former Viacom CEO Tom Freston, can afford private schooling for his son, Gilbert. But Freston, in a statement, said he wasn't pressing the case for personal gain. "Children with special education needs have a right, without jumping through hoops, to attend schools capable of providing them with an education that accommodates their individual needs regardless of their family's financial means," Freston wrote. Several justices were skeptical of Freston's claims. Justice Antonin Scalia said affluent parents who have no intention of using public schools might think "what the heck, if we can get $30,000 from the city, that's fine." Freston's lawyer, Paul G. Gardephe, said Congress made clear that it did not want children subjected to inadequate education just to satisfy a technicality of trying out a public school before switching to a better-suited private school. Justice Samuel Alito agreed that such a requirement "makes no sense whatsoever." Freston's son was diagnosed with learning disabilities in the late 1990s. The family's solution was to send the boy to the Stephen Gaynor School, a top-notch but expensive Manhattan academy for children with learning problems. Freston sued the city after he asked it to pay his son's tuition and the city refused. Federal law demands such payments when a public school system is unable to properly deal with a student's disability, but in this case New York said it could do the job. It recommended that the boy attend the city-run Lower Laboratory School for Gifted Education. Freston won in lower courts and the city appealed to the Supreme Court. Gilbert Freston, now a teenager, has transferred to mainstream schools, his father said. Nationwide, the number of special education students placed in private schools at public expense has risen steadily, from about 52,012 pupils in 1996 to 71,082 in 2005, according to the U.S. Department of Education. Overall, however, the number of such placements remains small -- just 1.1 percent of the country's 6.1 million special education students. In New York, a growing number of parents have been exploring a private-school option. During the 2002-2003 school year, the city received 3,908 tuition reimbursement requests, Best said. By the 2005-2006 school year, that number had jumped to 4,804. A decision is expected by spring. The case is Board of Education of City of New York v. Tom F., 06-637." It will be interesting to see how this plays out.