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Justices Hear Arguments on ‘Unilateral’ Private Placements

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The U.S. Supreme Court appeared sympathetic today to arguments from the New York City school system that Congress intended to limit when parents of children in special education could be reimbursed for tuition when they enroll their children in private schools.

“There are a lot of parents who are going to send their children to private schools no matter what. They are well-heeled and this is just an opportunity to have New York City pay $30,000 of it,” Justice Antonin Scalia said to the lawyer for a parent who challenged the special education program proposed for his son by the 1.1 million-student school system.

At issue in Board of Education of the City School District of the City of New York v. Tom F. (Case No. 06-637) is whether such parents may win reimbursement for such so-called unilateral private school placements if their children have never attended public school. ("High Court Case Could Rein In Private Placements Under IDEA," Sept. 26, 2007.)

Under the Individuals with Disabilities Education Act, the reimbursements are available when a school district has failed to provide a free, appropriate education under the terms of the federal law and the private school placement is deemed appropriate.

Leonard J. Koerner, the New York City corporation counsel, told the justices that at a minimum, the IDEA requires children to be enrolled in public schools for 10 days before their parents can place them in private schools and seek reimbursement from the public system.

“Congress thought if you are in our system and have a vested interest,” cooperation between public school districts and families over special education would inevitably improve, Mr. Koerner said.

But Paul E. Gardephe, a private New York City lawyer representing the parent in the case, said that language in the 1997 reauthorization of the IDEA did not require that children be enrolled at all before parents could pursue the reimbursement option.

“I think it’s clear Congress never intended that the child be placed in a patently inappropriate placement to win reimbursement,” Mr. Gardephe said.

He was joined by the Bush administration, which told the justices that public schools can avoid having to reimburse parents for private school placements if they come up with a proper individualized education program for the child in the first place.

“It doesn’t fit that [the IDEA provision] would mean you have to give public school a try,” Deputy U.S. Solicitor General Gregory G. Garre said.

‘Makes No Sense’

Mr. Gardephe was representing Thomas E. Freston, a New York City media executive who is seeking tuition reimbursement for enrolling his son, Gilbert, who has learning disabilities, in a private school in the 1999-2000 school year. The tuition that year was $21,819, according to court papers.

His side, however, seemed to be getting little support today from the justices, except at one point when Justice Samuel A. Alito Jr. told Mr. Koerner, the New York school district’s lawyer, that the provision added to the IDEA in 1997 “makes no sense whatsoever.”

Chief Justice John G. Roberts Jr. questioned both sides aggressively, but by the end of the argument he seemed to accept that Congress was seeking to limit unilateral private placements.

When Mr. Garre argued that the law does not require parents to give an inadequate public school placement a try before placing their child in a private school, the chief justice said, “The whole point is you don’t necessarily know it’s inadequate until later in time.”

But it was Justice Scalia who returned several times to the undercurrent of the case, which is that wealthy, savvy parents, particularly in New York City, may have figured out how to manipulate the system to be reimbursed for private school tuition when they had no intention of ever enrolling their children in the public system.

The 1997 provision in the IDEA suggests that public school systems “should not have to pay the freight for people who would not be coming to public school anyway,” Justice Scalia said.

One wrinkle in the case is that Justice Anthony M. Kennedy recused himself from participation. As is customary, Justice Kennedy did not give a public explanation for the recusal. Should the justices end up in a 4-4 tie, a federal appeals court ruling in favor of Mr. Freston would be upheld without an opinion.

Vol. 27

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