Special Ed Zugzwang in Moorestown

An interesting special education case blew through the transom this week, Moorestown Board of Education v. S.D. and C.D. on behalf of M.D. M.D. is a young boy, classified as autistic, who resides in Moorestown with his parents. After a couple of unproductive years in-district, the parents decided to enroll him in a private school at their own expense. The school, Orchard Friends, specializes in children with language-based learning disabilities. Tuition is $35,000 per year.

After a year at Orchard Friends, the parents requested that Moorestown Public Schools provide their son with learning evaluations and an I.E.P. (Individualized Education Plan) to see if services could be met within the public district. Inexplicably, Moorestown refused to comply, claiming that they did not have to provide the boy with these documents as long as he was not enrolled in the district, despite the fact that he was a resident of the township. His parents, of course, were not willing to disenroll him from Orchard Friends – a tiny school with 25-30 kids – and risk losing his placement.

The parents sued Moorestown Board of Education for noncompliance with IDEA (Individuals with Disabilities Education Act).

Three years later, the District Court of New Jersey issued its ruling and it’s not subtle. Using language like “gamesmanship,” “troubling,” and “indefensible,” the Court found that Moorestown denied the boy FAPE (Free Appropriate Public Education). From the ruling:
If the court were to adopt Moorestown’s position, privately enrolled children with disabilities would not have available to them a free, appropriate public education. Parents would have to enroll their child in public school with no information about the type of program the district may offer, where the child may be placed, or even if the district’s IEP would constitute a FAPE. The child would risk losing his place at the private school without any guarantee that the district would provide an appropriate education. This presents a particularly troubling scenario for parents who withdrew their child from public school in the first place due to concerns that the district was not providing a FAPE. Should the parents take the risk, re-enroll their child in the district and then find the public school unable to provide him with a FAPE, the child may have lost his place at the private school and must pursue relief through the administrative review process.
Moorestown tried to settle during the trial for $75,000 but the parents held out. In the end, the court ruled that Moorestown was responsible for IEP’s, evaluations, court costs, and, in the end, tuition at Orchard Friends. Noted the Court,
In the final analysis, Moorestown shucks the word “enroll” from applicable statutory and regulatory provisions to make its case. Such sophism is troubling. Since M.D.’s disabled status and residency were known to the District, Moorestown’s requirement that he enroll in the public school before he would be considered for special education services served no purpose other than to circumscribe the District’s IDEA obligations and provisions of FAPE. Such unnecessary procedural hurdles frustrate IDEA’s broad remedial purpose. They become even more indefensible when they put parents and children in “Zugswang.” Clearly, Congress intended collaboration, not gamesmanship.
*Zugswang: "a situation where one player is put at a disadvantage because he has to make a move when he would prefer to pass and make no move. The fact that the player must make a move means that his position will be significantly weaker than the hypothetical one in which it was his opponent's turn to move."