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In an opinion approved for publication and released on September 15, 2011, the United States District Court for the District of New Jersey has explained that a school district may not deny a request for evaluations and an Individual Education Plan (“IEP”) by a privately enrolled student whom the district knows is disabled and domiciled in the district based upon the grounds that the student is not enrolled in the public school.

The case involved a student with autism, M.D., living within the boundaries of the Moorestown School District. When his parents were unhappy with his progress within the district, they placed him at a small special education school at their own expense. After he had been there a year, they requested evaluations and an IEP from the district to see if he could return to district. The district claimed it did not have to offer the student a program at all, based on the fact that he was not enrolled. If his parents reenrolled him within the district he could have lost his place at his current school which accepted only 25-30 students. The district’s refusal continued for three years, and the parents privately funded their son’s placement, while suing for reimbursement as allowed under the Individuals with Disabilities Education Act ("IDEA").

Notably, the Court used strong language to describe the position of the district – citing the requirement of enrollment as “gamesmanship,” “troubling,” and “indefensible.” The Court also said that the district’s requirement “that the student enroll in the public school before he would be considered for special education purposes served no purpose other than to circumscribe the IDEA’s obligations and create a barrier to the provision of a free and appropriate education.”

IDEA permits an award of attorneys’ fees to parents who are successful parties in litigation with districts. The Court found that M.D.’s parents obtained “significant relief and directed them to submit a fee application to the Court for approval.