Hey Andy and co.

Socks,

I would be willing to wager the larger (Unified) school district(s) in your area have access to the IDELR (Individual with Disabilities Law Reporter). This publication is made available to all who can afford it. It is the history of special education case law and the IDEA from conception forward.

Gaining access to it may be a challenge, but far from impossible.

I believe that they publish this in Maryland (or somewhere in the northeast).

I had a nasty time gaining access here in SD, but as I said, not impossible.

Try to locate the publication over the www, and get address and number first. Contact them without giving much detail, almost acting like a student doing research, and inquire who in your area (within a 30 mile radius or so) has the publication… (this is a printed library of notebooks that takes up quite a bit of space on a table top, and also is on CD Rom, to the best of my knowledge). Keep this info to yourself for now.

Then go to your local assemblyperson’s office and make an appointment to meet with an aid who is interested in helping special needs children and education matters. Once you feel confident with this person, ask them if they can quietly inquire of the districts if this publication exists, and if they have access to it. Odds are very good their attorneys already have it, or the district pays for it, and their attorneys are holding on to it. Remember, technically, it is paid for with tax dollars and you should have unlimited access to it too!

Anyway, tell this aide you need access asap, but to please keep your confidence right now, and you will explain all to them once they get you access to the publication.

If they come back saying no one has it; then tell them where you have already found it (via the phone call to IDELR publisher).

Questions to ask then are ones like :why would they hide it from you…??? (If that happens…)

If they make it available to you, then you simply go through the table of contents, look up cases by year, by name, by state and all other means of standard research… It’s a great publication, mostly used by districts and their henchmen. You will find that the actual publication is geared more towards administrators and how to properly work the law, but it does go both ways.

I would also suggest sending an e mail to Peter Wright and Reed Martin, asking them how you can find the case. They may have this IDELR on file and be able to have one of their assistants e mail you what you are looking for. Don’t sell yourself short, find the IDELR yourself.

I went so far as to get the aide of my assemblyperson to get me full access, and a good butt reaming of the school super (and subsequently the head of special ed) for keeping it from me by the head of the board of education. Can’t begin to tell you how fun it was for a full week to sit at the desk right out side the head of sp ed’s office and go through the entire history of IDELR for about 6 hours per day! They tried to charge me .15 per copy of documents, and a subsequent re-reaming was required. Turns out copies were about .03 a piece at the time :)

Anyway, best of luck. Go get it.

Andy

hMM, Andy…
I knew you would have good advice.
question:
this case will be another county school board.It went to the State Supreme court,still be at my district level? Will do a search.

What information do you need about this case? I append the text of it below. It appears to have been subsequently cited as a precedent only once: in Ison v. Zimmerman in 1979.

EMERY SCAVELLA by his parents YVONNE SCAVELLA and ELBRIDGE SCAVELLA, Appellants, v. THE SCHOOL BOARD OF DADE COUNTY and THE FLORIDA DEPARTMENT OF EDUCATION, Appellees JERRY GRACE by his mother LISA GRACE, Appellants, v. THE SCHOOL BOARD OF DADE COUNTY and THE FLORIDA DEPARTMENT OF EDUCATION, Appellees

Nos. 50831, 51564

Supreme Court of Florida

363 So. 2d 1095; 1978 Fla.

September 28, 1978

SUBSEQUENT HISTORY: [**1]

Rehearing Denied November 28, 1978.

COUNSEL: Louis R. Beller, Miami Beach, for appellants.

Frank A. Howard, Jr. and Phyllis O. Douglas, Miami, for School Board of Dade County.

Winifred L. Wentworth, Gen. Counsel and John D. Carlson, Counsel, Tallahassee, for Florida Department of Education.

OPINIONBY: ADKINS

OPINION: [*1097]

We have for review on direct appeal two consolidated cases where the circuit court judges upheld the constitutionality of Chapter 75-284, Section 26, Laws of Florida codified at and hereafter referred to as Section 230.23(4)(m)7, Florida Statutes (1977). Both cases involve exceptional students who have been attending private schools because of the lack of special services in the Dade County public schools to meet their special needs. Before the 1975-76 school year, the Dade County School Board had been paying the entire costs of appellants’ education pursuant to Section 230.23(4)(m), Florida Statutes (1977). In 1975 the legislature added the following paragraph, the subject of this appeal.

“7. The district school board shall establish a maximum amount which can be paid by a district school board for an individual exceptional student contract with a nonpublic [**2] school, based on the maximum full-time equivalent earned by the student.”

The school board interpreted this to mean that they could only pay out to private schools what they actually received from the state for that particular student. It added the following amendment to the Dade County Procedures for Providing Special Education for Exceptional Students (1975-
76):

“Effective July 1, 1975, the maximum amount which will be paid by the School Board of Dade County, Florida, pursuant to any individual exceptional child contract with a non-public school will be no more than the base student cost determined annually by the legislature times the
legislatively established cost factor appropriate for the child’s exceptionality times the established district cost differential. There will be no cost deduction for administrative costs.”

In accordance with this policy the school board limited its obligations in the contract with the two private schools for less than the full
cost of appellants’ education. Having no other choice, appellants’ parents paid the difference and sought reimbursement in the circuit court. Neither case came to trial: an order of summary judgment [**3] was entered in Scavella v. School Board of Dade County, Case No. 76-84 (Fla.
11th Cir.Ct. 1976) and a dismissal with prejudice of a third amended complaint was entered in Grace v. School Board of Dade County, Case No. 76-83 (Fla. 11th Cir.Ct. 1976).

In the order granting summary judgment, the circuit court
judge explicitly held Section 230.23(4)(m)7, Florida Statutes (1977) constitutional. In the other case, the order to dismiss the complaint with prejudice is implicitly based on the same conclusion. We have jurisdiction to decide both cases. Article V, Section 3(b)(1), Fla.Const.;
Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959).

Appellants argue that placing a cap on the amount of money a school district may pay to a private institution for the education of a physically handicapped child is
unconstitutional. They mainly contend that the cap is a denial of their right to equal protection under the laws.

Much of the argument centered around whether appellants were members of a “suspect class”, a classification used by the United States Supreme Court in determining the standard of judicial review in equal
protection cases. We need [**4] not embroil ourselves in this controversy since Florida has a more specific constitutional provision which provides:

“No person shall be deprived of any right because of race, religion or Physical handicap.” Article I, Section 2, Florida Constitution. (emphasis supplied)

In light of this
more stringent constitutional requirement, we only need to decide [*1098] whether the cap imposed by Section 230.23(4)(m)7 Florida Statutes (1977), deprives appellants of Any right, not just their right to be treated equally before the law.

We start our analysis by examining what effect the challenged statute has on
existing law. We first take note that the state is responsible for providing adequate educational opportunities for all children, Section 229.011, Florida Statutes (1977). This responsibility is delegated to the school officials who compose the school board of each school district, Section 230.01, Florida Statutes (1977). The powers and
duties of the school board are found in Section 230.23, Florida Statutes (1977), which in relevant part reads:

“The school board, acting as a board, shall exercise all powers and perform all duties listed below:

(4) adopt [**5] and provide for the execution of plans for the establishment, organization, and
operation of the schools of the district as follows:

(m) Exceptional students. Provide for an appropriate program of special instruction, facilities, and services for exceptional students as prescribed by the state board as acceptable, including the provision that:

2. The school board provide the special instruction, classes and services, either within the
district school system, in cooperation with other district school systems, or through contractual arrangements with approved private or nonpublic schools or community facilities.”

This statute requires the different school boards to establish special programs for educating exceptional students. Exceptional students include all those students who are physically
handicapped. Section 228.041(19), Florida Statutes (1977). Realizing that the public schools may not have the special facilities or instructional personnel to provide an adequate educational opportunity for the exceptional students, the legislature has allowed the school boards to make contractual arrangements with private schools. Section 230.23(4)(
m)2, Florida Statutes (1977). [**6] The Board of Education, however, requires that such arrangements be made only as a last resort:

“When an appropriate special program cannot be provided within the district or in cooperation with other districts, a district may utilize nonpublic schools through a contractual arrangement
based on guidelines issued by the director of the division of elementary and secondary education.” Fla.Admin.Code Rule 6A-6.311(3).

The effect of the challenged statute allows the school boards to set a cap on the amount of money they will pay to a private school when fulfilling their responsibility to provide an
education for exceptional students. The problem is whether this cap denies exceptional students, more specifically the physically handicapped students, their right to a free education. That such a right exists cannot be disputed even though there are no Florida cases holding such. The Florida Constitution mandates the legislature to provide for “
a uniform system of Free public schools.” Article IX, Section 1, Florida Constitution. In compliance with this provision, the legislature has established a system of public schools which must provide “13 consecutive years of [**7] instruction … (and) such instruction for exceptional children as may be required by law.”
Section 228.051, Florida Statutes (1977). These schools are funded by governmental sources and nonresident tuition fees, not by the people utilizing them, except indirectly as taxpayers. The clear implication is that all Florida residents have the right to attend this public school system for free.

It is incumbent upon this court to construe this
statute as not interfering with the right to a free education so as to prevent its being rendered unconstitutional. Bonvento v. Board of Public Instruction, 194 So.2d 605 (Fla.1967). The legislature wishes to impose a cap “based on the maximum full-time equivalent earned by the student.” The full-
time equivalent earned by a student depends, among other things, upon the student’s particular handicap. Section 236.081, Florida Statutes (1977). [*1099] Presumably more money is allotted for those students whom it costs more to educate. Thus the legislature recognized a need to place a higher
cap on the spending of money for private instruction and special facilities for the more severely disabled children.

The term “based on the maximum full-time [**8] equivalent” does not necessarily mean “equal to the full-time equivalent.” It could mean a certain factor times the full-time equivalent. Such an interpretation would
preserve the legislature’s intent to correlate the maximum a school board should pay to a private school with the severity of the particular student’s handicap.

We therefore hold that the statute requires the school districts to establish a maximum amount that would not deprive any student of a right to a free education. So interpreted the statute is
constitutional and will not deny anyone of equal protection before the law since the cap is reasonably based upon the student’s particular need. Whether appellants’ rights to a free education are denied depends on whether there exists some adequate program for the exceptional student, which cost does not exceed the cap established
by the school board.

In this case the Dade County School Board set as a maximum an amount equal to a factor of one times the full-time equivalent. The issue now becomes whether the school board’s rule is constitutional. That is, does the maximum set by the school board deny appellants their
right to an adequate opportunity to receive a free [**9] education? We are unable to answer this question. In neither case does the record show, nor the complaint allege, that the maximum set by the school board is insufficient to provide appellants an education.

In Case No. 76-83 Appellant Grace’s third amended
complaint was dismissed with prejudice. Upon review, we are to accept all the allegations in the complaint as true. In re Burton’s Estate, 45 So.2d 873 (Fla.1950).

In paragraph 9 of the complaint, Jerry Grace alleged that the maximum amount established by the Dade County School Board was “based on an
arbitrary formula different from the actual cost of educating the exceptional student.” The complaint also alleges that Jerry Grace is an exceptional student who attended a private school; that the Dade County School Board paid for the full cost of his education for the 1974-75 school year; and that since that time no
new facilities have become available within the Dade County School System nor has any alternative plan of education been offered to Jerry Grace. We believe these allegations are sufficient to support a cause of action.

If indeed the maximum amount set by the school board prevents Jerry Grace from receiving a reasonable [**10]
opportunity to receive a free education, the relief he requests should be granted. But, on the other hand, if Jerry’s parents had forsaken an adequate special program for a more expensive, albeit better, private school, then they should pay for the extra costs. Because we have interpreted the statute to render it constitutional, we believe Grace should be
allowed to further amend his complaint.

This cause is reversed and remanded with instructions to proceed in conformity with this opinion.

In Case No. 76-84, appellant Emery Scavella moved for a summary judgment. By making such a motion, appellant has conceded that the record is complete and that there are no issues of
material fact to be resolved. Geiser v. Permacrete, Inc., 90 So.2d 610 (Fla.1956). Since the record does not conclusively show that the cap prevented appellant from receiving a free education and since the judge did not err as a matter of law in finding Section 230.23(
4)(m)7, Florida Statutes (1977) constitutional, his final order is affirmed.

ENGLAND, C. J., and BOYD, OVERTON and SUNDBERG, JJ., concur. [**11]

HATCHETT, J., concurs in result only.

Actually this case was cited in Oct. 2000,filed against the Opportunity scholarship in Florida. This case was mentioned regarding the Opportunity Scholarship for the Disabled” Worried about the specific reference to Physical disabilities,vs. any disabilities,anyway,need the opinion of the ruling regarding the funding cap,it’s in here,THANKS!!! I do believe this case will go a long way for showing that this voucher is a State Program,therefore a public program,and these students retain their right to a Free an Appropriate Education.. Withholding federal funding purposely,does not give you immunity as a recipent. I hope Florida is listening.