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Justices Clarify Placement Rights Of Handicapped

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Washington--Parents of handicapped children who unilaterally take them out of public schools and place them in private schools can be reimbursed for tuition if such transfers are later determined to have been in the child's best interest, the U.S. Supreme Court ruled last week.

However, the Court added, parents are not entitled to such payments if hearing officers or judges rule that the student's public-school programs were "appropriate" as defined by the Education for All Handicapped Children Act of 1975, P.L. 94-142.

Unanimous Opinion

In a unanimous opinion written by Associate Justice William H. Rehnquist, the Court ruled in School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts (Case No. 84-433) that P.L. 94-142 "was intended to give handicapped children both an appropriate education and a free one; it should not be interpreted to defeat the other of those objectives."

"It would be an empty victory to have the court tell [parents] several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials," the opinion stated.

But the Court also warned that parents who unilaterally move their child from one placement to another without the consent of the local or state board do so "at their own financial risk."

History of Case

The case dates from 1976, when the parents of Michael Panico, then 5 years old, determined that their son had learning disabilities. The parents disputed the local school board's individual-education plan, which would have placed Michael in a special-education class in a public school for the 1979-80 school year. They placed him in a private school without the board's permission. (See Education Week, April 3, 1985.)

The parents' placement was upheld by a state hearing officer, then appealed by the local school board to the U.S. Court of Appeals for the First Circuit. For procedural reasons, it went twice to the First Circuit Court.

The second time, in May 1983, the appeals court ruled that the parents should have been reimbursed for tuition paid from January 1980 until the end of the school year, the period during which Michael was in the school with the approval of the state.

The court also ruled that the parents had a possible right to further reimbursement if the district court found "serious procedural violations" by local school officials.

Lawyers' Arguments

In oral arguments before the Supreme Court, David Berman, the lawyer for the Burlington school committee, told the Justices that parents are obliged to keep their child in the placement made by the school until a court rules otherwise.

But lawyers for the parents and the state argued that the parents "exercised their rights in complete conformity with state and federal law."

Provision Questioned

The dispute centered on a specific provision of P.L. 94-142, which states that unless the state and local education agencies and the parents agree otherwise, the child should remain in the "then current educational placement."

The Court's opinion said that un-der the school committee's reading of the provision, "the parents are forced to leave the child in what may turn out to be an inappropriate educational placement or to obtain the appropriate placement only by sacrificing any claim for reimbursement."

Intent Clarified

The Justices determined that the provision was inserted primarily to prevent school officials from removing a child from a regular public-school classroom over the parents' objections until proceedings are completed.

"Congress was concerned about the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes," the opinion noted.

The Justices ruled that the Congress "undoubtedly" did not intend that parents have no financial recourse when their child is placed in what they feel is an inappropriate placement and "meant to include retroactive reimbursement to parents as an available remedy in certain cases."

'Tremendous Impact'

Mr. Berman said the opinion seems to be "very tightly written," in that it bars parents from receiving reimbursement if the school officials' placement is subsequently deemed appropriate.

But Ellen Janos, the Massachusetts assistant attorney general who argued the case for the state, said the opinion should have "a tremendous impact around the country."

"Most other circuit courts around the country held just the opposite of what the Supreme Court ruled--that money relief is not available retroactively," she said.

Previous Cases

Two previous cases have barred or limited reimbursement in such cases. In 1980, the U.S. Court of Appeals for the Fourth Circuit ruled in Stemple v. The Board of Education of Prince George's County that parents could never be reimbursed if they unilaterally moved their child.

Then in 1981, the U.S. Court of Appeals for the Seventh Circuit ruled in Anderson v. Thompson that parents were entitled to reimbursement under some circumstances, such as when a child's health was in danger.

"It's fairly clear that the Supreme Court's decision overrules those decisions," said Richard Howard, a lawyer for the Developmental Disabilities Law Center, which filed a friend-of-the-court brief in the case on behalf of the parents. "It would be an ornery district-court judge who would not give reimbursement in the circumstances" defined by the Court, he added.

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