Becoming the fifth federal court of appeals to rule on the issue of private school services, the 10th Circuit ordered the provision of one-on-one interpretive services to a deaf student on the site of his private school, but placed one qualification on the provision of those services in the area of cost. According to that court, the district must pay for the interpretive services in an amount up to, but not exceeding, the average cost it would incur to provide those same services to similarly situated students in the public schools. For the full text of this decision, see "Fowler by Fowler v. Unified Sch. Dist. No. 259," 25 IDELR __ (10th Cir. 1996), in the IDELR Daily Database; full text available on February 27, 1997.

Background. . .The parents of 10-year-old gifted student who was profoundly deaf sought the district's provision of one-on-one interpretive services on the premises of his private, nonsectarian school. The district had a cluster site for providing services to all elementary school children who were deaf. At a first-level due process hearing, the parents prevailed in obtaining those services. Then, during a second level due process hearing, that decision was reversed and the services were denied. Thereafter, the parents appealed to district court to seek that relief. The district court held that the IDEA and its regulations required the provision of the one-on-one interpretive services, without regard to the cost of providing those services. Parents were also awarded reimbursement for the cost of interpretive services they had supplied at their own expense, and attorneys' fees. The court subsequently denied a request for a stay of the order to provide the interpreter services, but did grant a stay of the money judgment pending the circuit court appeal.

HELD: the parents substantially prevailed.

At the outset, the circuit court observed that while local educational agencies have "considerable discretion" in providing services to parentally placed private school students, but that discretion is not "unfettered" and has "parameters". The court went on to find that cost was a relevant factor in this determination. Applying that rationale, the court said that the district was obliged to pay for the requested service in an amount up to, but not exceeding, the average cost the district expended in providing the same service to similarly disabled students in the public school setting, citing to 34 CFR 76.655(a) of the EDGAR regulations as authority for choosing the "average amount" as its "guiding principle". Regarding the calculation of the average amount of costs, the court noted that it was not an "exercise in pure mathematics" and that the district had "very broad discretion to calculate the average, using any rational basis" and that it would give "substantial deference" to its calculation. The court refused to find that the state statute provided any greater relief to the student or parents in this area. The circuit court affirmed the district court's award of attorneys' fees and further found that they were entitled to at least partial, and perhaps total, reimbursement for the interpreter services they had obtained at their own expense. In accordance with its findings, the circuit court reversed the district court and remanded the matter to the extent that it ordered the disputed services to be provided without regard to cost.

[Editor's Note: Once again, another court hearing the issue of private school services adds a slightly different twist. The Fowler approach aligns itself with the cases which view the rights of private school students with disabilities as closer to entitlements, rather than a privilege which the schools have discretion to provide. In Russman, the Second Circuit strongly suggested that cost may be a factor in limiting services for this group, at least in the context of where the services were provided---on-site at the private school versus a public school location. In Fowler, the 10th Circuit provides more detail about the parameters of cost as it affects this determination, very clearly stating that the services must be provided to the extent that they do not exceed expenditures which would be made under similar situations in the public setting. Note the significant leeway Fowler afforded to the local educational agencies in establishing the average costs of services. At this time, the special education is still waiting to hear whether the Supreme Court will hear the Russman and Anderson cases, and review seems likely given the conflict which pervades the law on private school services at this time.]

From LRP Publications and Education Administration Online