By Jon Pilsner
The parents of an autistic Berthoud boy have asked the U.S. Supreme Court to hear their case against the Thompson School District.
Jeff and Julie Perkins, the parents of Luke Perkins, through their attorneys, filed a writ of certiorari on Dec. 19 after the U.S. Court of Appeals for the 10th Circuit said the school district did not have to pay for Perkins to attend a special school in Boston.
They claim that a 1982 Supreme Court case opinion the 10th Circuit court referenced repeatedly in its decision needs to be reviewed and clarified because the law referenced in the case was updated in 1997.
That case, Board of Education v. Rowley, developed the definition of a “free, appropriate public education” that has become the center of debate in the Perkins case.
“Our writ is pushing it to the floor to ask the Supreme Court to decide one way or the other,” said Jack D. Robinson, attorney for the Perkinses.
Robinson argues in the petition to the high court the lower federal courts are “severely divided on this critical issue” of what is a free, appropriate public education.
The Rowley decision came as an interpretation of the 1975 Education for All Handicapped Children Act of 1975, but that law was updated with the Individuals with Disabilities Education Act of 1997.
That act is designed to “ensure that all children with disabilities have available to them a free (and) appropriate public education that emphasizes special education and related services designed to meet their unique needs” among other requirements.
Because the 1982 Rowley case, frequently noted in other circuit courts as well as the 10th Circuit, is outdated, Robinson said the circuit courts need updated guidance from the Supreme Court that reflects the 1997 act and changing views on what a free appropriate public education is.
The Perkinses enrolled Luke in the Boston Higashi School in 2004 because they believed Berthoud Elementary School was not meeting Luke’s needs.
The family then petitioned the Colorado Department of Education to require the district, under disability laws, to pay the more than $130,000 a year to enroll Luke at the Boston school to provide him with the “free appropriate public education” he could not get at Berthoud.
The department agreed with the Perkinses, as did a hearing officer and administrative judge who heard the district’s appeals.
In 2007, U.S. District Court judge Walker Miller dismissed another appeal from the district, but that decision was overturned by the Court of Appeals’ August 2008 ruling.
The Court of Appeals did acknowledge the Rowley decision was an analysis of the 1997 act’s precursor, but said in the Perkins’ opinion that “the same textual language has survived to today’s version.”
The school district waived its right to respond to the Perkinses’ writ, and the organization Autism Speaks filed a “friend of the court” brief in support of the Perkinses in early January.
The Supreme Court justices have put the case up for review on Feb. 20, where they will likely decide whether to review the case and listen to oral arguments.
If they deny the request to hear the case, the Court of Appeals’ decision will stand.
Source: http://www.reporterherald.com/news_story.asp?ID=21333
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