Carter Cases & Private Placements

Understanding "Carter Cases" for New York Parents: A Guide to Unilateral Private School Placement and Tuition Reimbursement

For New York parents of children with disabilities, navigating the special education system can be a complex and often frustrating journey. When a public school district fails to provide a Free Appropriate Public Education (FAPE) as mandated by federal law, parents may feel their only option is to unilaterally place their child in a private school that they believe can meet their child's unique needs. This often leads to what is commonly known as a "Carter Case," a legal pathway to seek tuition reimbursement from the public school district.

This expert-level guide will demystify the concept of Carter Cases, outline the crucial legal test established by the Supreme Court, detail the strict notice requirements, and highlight the significant risks involved for NY parents contemplating this path.

What is a "Carter Case"?

A "Carter Case" refers to the legal process where parents of a child with a disability unilaterally enroll their child in a private school and then seek reimbursement from their public school district for the tuition and related services. The name comes from the landmark U.S. Supreme Court decision, Florence County School District Four v. Carter, 510 U.S. 7 (1993), which affirmed parents' right to such reimbursement even if the private school is not state-approved or does not meet state standards for public schools.

This option typically arises when parents believe the Individualized Education Program (IEP) developed by their public school's Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) is inadequate or inappropriate to provide their child with FAPE. It's a powerful tool under the federal Individuals with Disabilities Education Act (IDEA), but one fraught with procedural complexities and substantial financial risk.

The Legal Foundation: Burlington and Carter

The right to tuition reimbursement for unilateral private placement originates from two seminal Supreme Court cases:

• Burlington School Committee v. Department of Education, 471 U.S. 359 (1985): This case established that parents could unilaterally place their child in a private school and seek reimbursement if the public school's proposed IEP was found to be inappropriate.
• Florence County School District Four v. Carter, 510 U.S. 7 (1993): Carter expanded upon Burlington, clarifying that parents could be reimbursed for tuition at a private school even if that school did not meet the state's educational standards, as long as the placement was "proper" under IDEA.

Together, these cases set forth a three-pronged test that parents must satisfy to be eligible for tuition reimbursement.

The Burlington/Carter Test: Three Critical Prongs

To succeed in a Carter Case, parents bear the burden of proving each of the following three prongs:

Prong 1: The Public School Failed to Provide a Free Appropriate Public Education (FAPE)

• What is FAPE? FAPE is special education and related services that are provided at public expense, under public supervision and direction, and without charge; meet the standards of the State educational agency; include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the IEP. Essentially, the public school's proposed IEP must be reasonably calculated to enable the child to receive educational benefit.
• Proving Failure: Parents must demonstrate that the IEP developed by the CSE/CPSE was substantively or procedurally flawed such that it deprived the child of FAPE. This could involve showing that the services offered were inadequate, the placement was inappropriate, the goals were not ambitious enough, or significant procedural violations (e.g., lack of parental participation, failure to consider independent evaluations) denied the child educational benefit.
• Prospective Focus: The focus here is on the appropriateness of the public school's IEP at the time it was developed, not in hindsight.

Prong 2: The Private Placement Was Educationally Appropriate

• Appropriateness, Not Perfection: Parents must show that the private school placement they chose was "educationally appropriate" for their child. This means it was reasonably calculated to enable the child to receive educational benefit and addresses the child's identified needs. It does not need to be the "best" possible placement, nor does it need to replicate all the services that would be available in a public school.
• No State Approval Required: Critically, under Carter, the private school does not need to be on a state-approved list for special education purposes or meet all state standards for public schools. This is a significant distinction from other types of special education placements.
• Evidence: Parents typically present evidence such as the private school's curriculum, teacher qualifications, student-to-teacher ratios, therapy services, and the child's progress at the private school.

Prong 3: Equitable Considerations Favor Reimbursement

• Parental Conduct: This prong assesses whether the parents acted reasonably and in good faith throughout the process. The court (or Impartial Hearing Officer in New York) has discretion to deny or reduce reimbursement if parents' actions were unreasonable.
• Good Faith Efforts: Parents are generally expected to engage constructively with the school district's CSE/CPSE process, attend meetings, and express their concerns clearly.
• The Strict 10-Business-Day Notice Requirement: This is arguably the most critical and often overlooked aspect of equitable considerations. IDEA mandates that parents provide the school district with notice of their intent to unilaterally place their child in a private school. Specifically, 20 U.S.C. § 1412(a)(10)(C)(iii) states that reimbursement may be reduced or denied if parents fail to give notice:
  • At the most recent IEP meeting the parent attended prior to the removal of the child from the public school; OR
  • By written notice to the school district at least 10 business days prior to the removal of the child.
• Consequences of Failure to Provide Notice: Failure to meet this strict notice requirement is a common reason why parents lose Carter Cases, even if they can prove Prongs 1 and 2. The law allows for reduction or denial of tuition reimbursement under these circumstances.
• Exceptions to Notice: IDEA does provide limited exceptions where the notice requirement may be waived or not applied to reduce reimbursement, such as illiteracy and inability to write in English, impossibility of compliance, or if the school district itself prevented the provision of notice (e.g., by misrepresenting that no services were available). However, these exceptions are narrowly construed.

Significant Risks and Challenges for NY Parents

While Carter Cases offer a potential remedy, they come with substantial risks and challenges that New York parents must carefully consider:

• High Financial Burden: Parents must pay the private school tuition upfront. This can amount to tens of thousands, or even hundreds of thousands, of dollars per year. There is no guarantee of reimbursement, meaning parents could lose all of these funds.
• Exorbitant Legal Fees: Pursuing a Carter Case involves due process hearings before an Impartial Hearing Officer (IHO) in New York, and potentially appeals to a State Review Officer (SRO) and then federal court. This litigation is lengthy and expensive. While prevailing parents can seek to recover reasonable attorney's fees, they must initially bear these costs.
• Burden of Proof: As discussed, parents carry the burden of proving all three prongs of the Burlington/Carter test. This requires meticulous documentation, expert testimony, and a thorough understanding of special education law.
• Strict Procedural Requirements: Beyond the 10-business-day notice, there are numerous other procedural hurdles that, if not met, can weaken a case.
• District Defenses: School districts will vigorously defend their IEPs, arguing they were appropriate, that the private placement was not, or that the parents' actions (especially regarding notice) preclude reimbursement.
• Time-Consuming Process: The legal process can take months, or even years, to resolve, causing significant stress and distraction for families.
• Adversarial Relationship: Pursuing a Carter Case often creates an adversarial relationship between parents and the school district, which can make future interactions challenging.

Practical Advice for NY Parents Considering a Carter Case

If you are a New York parent contemplating a unilateral private placement and seeking tuition reimbursement, here are critical steps to take:

1. Consult with an Experienced Special Education Attorney IMMEDIATELY: This is non-negotiable. An attorney specializing in special education law, particularly in New York, can assess the strengths and weaknesses of your case, advise on strategy, ensure compliance with all procedural requirements, and represent you in hearings. Do not attempt this process without legal counsel.
2. Document Everything: Maintain meticulous records of all communications with the school district (emails, letters, meeting notes), IEPs, evaluations (both district and independent), private school applications, acceptance letters, tuition invoices, and records of your child's progress.
3. Act in Good Faith: Attend all CSE/CPSE meetings, articulate your concerns clearly, and give the district a genuine opportunity to propose an appropriate IEP. Your good faith efforts will be considered under the equitable prong.
4. PRIORITIZE THE 10-BUSINESS-DAY NOTICE: This cannot be stressed enough. Provide written notice to the school district at least 10 business days before you withdraw your child from public school and enroll them in a private placement. Ensure the notice clearly states your intent to remove your child, your reasons for believing the public school's IEP is inappropriate, and your intention to seek tuition reimbursement from the district for the private placement. Keep proof of delivery (e.g., certified mail return receipt).
5. Thoroughly Research Private Placements: Ensure the private school you choose genuinely meets your child's needs and that you can articulate (and prove) why it is educationally appropriate.
6. Understand the Financial Implications: Be prepared to pay for tuition and legal fees out-of-pocket, potentially for an extended period, without a guarantee of reimbursement.

Conclusion

Carter Cases represent a vital safeguard for parents in New York and across the country when their public school district fails in its obligation to provide FAPE. However, they are complex, high-stakes legal undertakings. The strict requirements of the Burlington/Carter test, particularly the 10-business-day notice, and the significant financial and emotional toll, mean that parents should approach this path with extreme caution and always with the guidance of experienced legal counsel. By understanding the legal framework and being meticulously prepared, New York parents can better navigate these challenging waters in pursuit of their child's educational rights.