Smiling child

DRW Challenges Madison School District on Pre-School for Kids with Disabilities

Madison rapped for preschool gap
Judge says district must pay for services it does not provide
By Bill Lueders
Isthmus 07/24/2008

Jeff Spitzer-Resnick says the case could spur the Madison school district to offer 4-year-old kindergarten and amp up its assistance to dozens of families.

“My clients can afford preschool,” says Spitzer-Resnick, an attorney with Disability Rights Wisconsin, a nonprofit public-interest law firm. “The people who most need help and most stand to benefit are the ones who can’t.”

Spitzer-Resnick is representing the parents of a 4-year-old special needs child. A district evaluation in mid-2007 determined that the child qualified for special education services, as is mandated for 3- and 4-year-olds by state and federal law.

But the Madison district does not offer 4-year-old kindergarten and has only nominal programming for kids in this category. And so the parents (whom Isthmus is not naming to protect their child’s privacy) asked Disability Rights Wisconsin to argue that the district must pay the costs of a private preschool they used as an alternative.

“They came to us because they saw the big picture of lots of families who can’t afford preschool,” says Spitzer-Resnick.

In late May, an administrative law judge ruled in the parents’ favor, saying the district’s actions violated the federal Individuals with Disabilities Education Improvement Act. She ordered the school district to pay part of the costs of the services provided at the private preschool.

Both sides are now appealing that decision. The parents argue that the district ought to be paying the entire cost. The district argues that the parents are not entitled to tuition reimbursement. It says Madison schools provided requisite services, and the parents are essentially asking it to cover the cost of full-time childcare.

The two appeals were filed in separate court systems but will likely be heard in federal court.

Already, the administrative law judge’s ruling has had a statewide consequence. The district had relied on a bulletin from the state Department of Public Instruction to support its view that it need pay only the cost of teachers, not tuition, for mandated services provided by private preschools. The judge deemed that this advice had no basis in law.

“I went to DPI and said, ‘Hey, you have to rewrite the policy, it’s got to go,’” relates Spitzer-Resnick. DPI’s revised policy states that if required services are provided by a private preschool, “the entire educational program…, including tuition, must be at no cost to the parents.”

Spitzer-Resnick says there’s no way the district can claim that the services it now provides are adequate. He says offering 4-year-old kindergarten as a district-wide option would go a long way to plugging this gap.

The district’s lawyer, Joanne Harmon Curry of Lathrop & Clark, acknowledges there’s “a difference of opinion on what obligation the law places on the district” but says the district is confident in its legal position.

She declines to comment on whether the case may have larger implications, as Spitzer-Resnick contends. “We’re going to let this go to the courts,” she says, “before we speculate on any possible outcome.”

Click here to read the article and accompanying documentation on the Isthmus website.