Published Online: February 27, 2007

High Court to Weigh Case on Private School Placements Under IDEA

The U.S. Supreme Court has agreed to hear a case under the main federal special education law involving parents who place their children with disabilities in private schools amid disputes with public school authorities over their children’s education plan, then seek reimbursement at public expense.

Such “unilateral placements” were upheld under the Individuals with Disabilities Education Act by the high court in 1985. The justices held in Burlington School Committee v. Massachusetts Department of Education that parents are entitled to reimbursement when courts later determine that the parents’ private school placement of their child was appropriate and the school district’s placement was inappropriate under the IDEA.

The reimbursements are routinely ordered by lower federal courts under the proper circumstances, often at significant expense to public school systems.

But the case the justices accepted for review on Feb. 26 involves whether districts must reimburse parents when students in special education are placed in private schools without the students ever having been enrolled in the public school system.

In its appeal in New York City Board of Education v. Tom F. (Case No. 06-637), the 1.1 million-student New York City school system contends that it made a free, appropriate public education available to the student, Gilbert Freston, now 17 years old, but that the boy’s father, Thomas E. Freston, did not accept the placement.

Therefore, the district should not be responsible for the costs of the private placement, it says in legal briefs.

Mr. Freston is one of the co-founders of MTV: Music Television and the former president and chief executive officer of the entertainment company Viacom Inc. He was ousted last year by Viacom Chairman Sumner M. Redstone.

Mr. Freston enrolled Gilbert in the Stephen Gaynor School in New York City, a private school for children with special needs, in the fall of 1995, when Gilbert was 6. In 1997 and 1998, the New York City district established an individualized education plan for Gilbert, which the school district acknowledged was inadequate, said Neal Rosenberg, a lawyer for the Freston family. In response to a request from Mr. Freston, the New York City school board reimbursed the family about $36,000 for tuition for those two years, Mr. Rosenberg said.

In 1999, the district offered a different placement for Gilbert. Despite never visiting the public school suggested for his son, or any of the other public schools suggested for his son in the past, the district’s brief said, Mr. Freston again sought tuition reimbursement for the 1999-2000 school year.

Legal Maneuvers

In April 2001, a state special education hearing officer determined that the district had not met its burden of proving that its recommended placement was appropriate for the student. On appeal, a state review officer upheld the hearing officer’s decision that the district must pay tuition costs for the student for 1999-2000.

Taking the case to U.S. District Court in Manhattan, the school system prevailed. In a July 2005 decision, U.S. District Judge George B. Daniels wrote that the text of the IDEA suggests “that where a child has not previously received special education from a public agency, there is no authority to reimburse the tuition expenses arising from the parent’s unilateral placement of the child in private school.”

The father appealed and last year, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, unanimously vacated the district court, applying the reasoning of a recent decision the 2nd Circuit court had made in a similar case, Frank G. v. Board of Education of Hyde Park Central School District.

In that case, a different 2nd Circuit panel said the idea of parents having to enroll their child in a public school first places them “in the untenable position of acquiescing to an inappropriate placement in order to seek reimbursement from the public agency that devised the inappropriate placement.”

In its appeal, the New York City district argues that the 2nd Circuit court’s rulings in this area conflict with a 1997 amendment to the IDEA that it believes made clear the statute does not require public schools to reimburse parents when a district offers an appropriate placement but the parents voluntarily place their children in private schools.

The Supreme Court will hear arguments in the case during the term that starts next October.

Vol. 26, Issue Web only

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