The number of children attending schools outside of Darien reached a seven-year high last year, according to a Darien Times analysis. This happened as Darien High School was ranked best in the state by U.S. News & World Report.

The increase includes students receiving special education and others who attend magnet and various private schools throughout the state. Out of the 5,936 school-aged children living in town last year, 1,077 did not enroll in Darien Public Schools, according to data from the state Department of Education. This reflects 18.14% of the total school-age population, however, it does not include children attending Pear Tree Point School, Darien’s only private learning institution for elementary-age children. One hundred twenty-two children went to Pear Tree in 2011. Figures for 2012 were not provided to The Times.

The number of kids being taught outside the town’s public system has steadily increased since 2010, rising four out of the last six years. In 2010, 920 children attended other schools, which was 15.96% of the total school-age population.

New Canaan Country School taught the highest number of Darien kids last year, at 143. This is 17 fewer children than attended in 2011, data showed.

Stamford’s King Low Heywood Thomas School educates roughly 100 Darien kids per year, said Tom Main, head of school there. Darien, New Canaan and Greenwich comprise 40% of the school’s total enrollment, according to its website.

These schools, as many private schools, are known for individualized instruction. King Low and New Canaan Country average one teacher for every six students. This kind of individualized instruction is also what children in special education programs at public schools are guaranteed under federal law. Individualization, in the form of goals, tasks and needs, is supposed to be present in each disabled child’s individualized education plan, or IEP.

Betsy Hagerty-Ross, Board of Education chairman, did not respond to requests for comment on her thoughts regarding this increasing exodus of students.

For-profit schools that receive no money from the state, such as Pear Tree Point, are not required to report to the state its enrollment numbers. It’s unclear how many Darien kids attend these schools, so it’s possible the number of kids not in public school here is higher than what the state provided.

Special education costs

Schools that specialize in educating children with disabilities, such as Eagle Hill School in Greenwich and Villa Maria School in Stamford, also accept children placed there and paid for by parents. It’s unclear how many of the children in the above data attend school with tuition paid for by the public school district, which could be the case if the child is in special education.

The state provided data that showed eight children went to Eagle Hill in Southport in 2011, and four in 2012. It lists this location as a “nonpublic school.” However, for Eagle Hill in Greenwich, the state shows 17 kids there in 2011 and 15 in 2012, and lists the Greenwich location as a “nonpublic special education program.”

These numbers reflect the Oct. 1 enrollment figures for that year. Numbers for 2013 won’t be available until the spring, according to Kelly Donnelly, communication director for the state Department of Education.

Of the 1,077 kids who went to other schools, 55 were in public schools, such as Stamford’s magnet school or Cooperative Educational Services in Trumbull, which serves children with disabilities. A total of 34 children attended private special education programs in 2012, up one child from 2011.

According to grant application data obtained through a Freedom of Information request, Darien applied for reimbursements for 23 children attending private schools for the 2012-13 school year. Traditionally, the state reimbursed a district any child’s expenses that exceeded 4.5-times the per pupil expense in a district. Since 2008, however, the state has not fully funded its obligation to pay for excess costs in special education.

These numbers are currently the target of a forensic audit in Darien. Allegations surfaced late last year that the district applied for reimbursements for services it didn’t provide. The cost to educate 73 students in-district is the primary focus of the audit.

Some children were categorized as having disabilities that are usually inexpensive to handle, yet the district’s price on some educations appears to exceed what would be considered a reasonable expense.

For example, the education of a child with ADD purportedly cost Darien more than $67,000 to teach in-district, and the education of a child with a learning disability, likely dyslexia, cost Darien more than $85,000. Some children have more than one disability, but that information is not available.

Jack Davis, member of the Representative Town Meeting, has raised the issue of improper identification in the past. Some say parents don’t want the stigma of high profile disabilities, such as autism, on their children’s records, and ask the district to use a different categorization. Others say these excessive costs are examples of inefficiencies, and still others say it’s proof that Darien was padding its expense reimbursements.

Burden of proof

Darien’s special education system has fallen under much scrutiny over the last nine months, when it was found to have broken state and federal special ed laws. These illegal instances occurred after several years of high spending in special education, with an increasing number of children being sent to other schools at public expense.

Liz Mao, Board of Finance chairman, earlier lamented how parents try to “win the lottery” by getting private school placement for their disabled children.

“I don’t think it’s right when people are trying to take advantage of the system and get services they’re not entitled to,” Mao said during the summer, in the midst of the special education crisis.

If parents believe their child is not getting an appropriate education in public school, they have a right to place that child in another setting and to ask for the public school to pay for it. In Connecticut, if the district believes its program was appropriate, the legal burden is on the district to prove it. This is also the case in New York, New Jersey, Delaware, Nevada and West Virginia. In other states, the burden is either on the parents to prove the school’s program was inappropriate or the school, if the school is the entity challenging the placement.

The Darien school board, and its lobbying organization, the Connecticut Association of Boards of Education, has consistently supported reversing the burden of proof to parents. In 2011, then board Chairman Kim Westcott said parents used special education law as a “sledgehammer” to get private placement for their disabled children.

Nick Caruso, senior staff associate for field service at CABE, earlier told The Darien Times that burden of proof remains a hot topic, and CABE still hopes to reverse it to parents.

“We’re always looking for ways to improve that process,” Caruso said.

Budget

Darien’s proposed budget for next year includes $325,000 for special education legal services. This money is mostly used to handle disputes between the district and parents. Last year, the district found itself embroiled in a battle with parents over the legality of its special education program, and many parents began placing their children in private schools.

The exact number of parents who did this is unclear, but budgeted figures for the current fiscal year appear to fall short when compared to estimated actual figures for out of district tuition. The district looks to spend $737,000 more than it anticipated on private schools for children with disabilities this year. The district is projecting a $725,000 budget deficit this year, which includes more than $470,000 in excessive legal fees.

For next year, Darien plans on spending an additional $849,412 on out of district tuition for special education students, totaling $3.97 million. This is an increase of 309% from 2010-11 spending.

Reasons for the hike in outplaced students vary. Some have said that parents are using the burden of proof to get high-priced private school tuition for their disabled children. Others, such as Andrew Feinstein, a special education attorney, say Darien has provided a “lousy” education for children with disabilities, so parents take their kids elsewhere.

“The reason people outplace their kids is because Darien has cut costs and provides a lousy education for kids with disabilities,” Feinstein said last summer. “If Darien invested in providing an appropriate education for kids with disabilities then the number of outplacements would drop and the cost to the district will drop. It’s penny-wise, pound foolish.”

• Schools given blank check for legal fight

Reverse the burden?

Some argue that school districts are not overwhelmed by burden of proof responsibilities, and that reversing it to parents would add undue stress to a party that already enters the special education system confronted with complex law and jargon.

In a 2011 letter to the state Board of Education, Diane Willcutts, a mother of and advocate for children with disabilities, discussed this discrepancy of resources between school districts and parents.

“Burden of proof does not place any significant financial burden on our schools because districts are already required to maintain records to show compliance” with federal law, Willcutts wrote. “School districts are in a better position to demonstrate an IEP is appropriate, as it is school districts, not parents, who have immediate and unlimited access to all the information about a child’s program.”

Even with the law as it is, districts prevail in a majority of due process hearings. From 2007 to 2010, districts prevailed 55% of the time in cases where parents had legal counsel. When parents are not represented, schools almost always prevail, winning 95% of those cases, records show.

“Before parents file for hearings, most have spent years trying to work with their schools but keep hitting barriers, due to an imbalance of power,” Willcutts continued. “Parents spend years watching their children suffer, falling further and further behind their classmates. Going to a due process hearing is a last resort, and only a tiny percentage ever file for hearings, even when their child’s program is clearly inappropriate.”

Caruso from CABE notes that if parents prevail on one aspect of their due process complaint, the school district is liable for legal expenses. However, Willcutts notes that up front legal fees still must be paid for by parents, and in poor communities, this is often not an option.

Statewide Legal Services and Connecticut Legal Services offer special education law assistance for free to qualifying low-income individuals. Statewide can be reached at 800-453-3320 or at slsct.org , and Connecticut Legal’s Stamford office can be reached at 203-348-9216, or at ConnLegalServices.org .

Originally published in The Darien Times.