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Published in Print: October 10, 2007, as Justices Weigh IDEA Private Placements

Justices Weigh IDEA Private Placements

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The U.S. Supreme Court appeared sympathetic last week to arguments from the New York City school district that Congress intended to limit when parents of children in special education may be reimbursed for such students’ private school tuition.

At issue in Board of Education of the City of New York v. Tom F. (Case No. 06-637) is whether parents may win reimbursement for “unilateral” private school placements—enrollment without the agreement of the school district—if their children have never attended public school.

“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 on Oct. 1 to the lawyer for a parent who challenged the special education program the district had proposed for his son.

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Oral arguments in the case came on the first day of the court’s 2007-08 term. In other action last week, the justices declined to hear the appeal of a teacher who had claimed she was dismissed over comments she made related to the war in Iraq.

A ‘Vested Interest’

Under the Individuals with Disabilities Education Act, reimbursement is 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, New York City’s chief appellate lawyer, told the justices that, at a minimum, the IDEA requires that children be enrolled in public schools for 10 days before their parents can place them in private schools and seek reimbursement from the public system. That reasoning comes from a provision in the special education law requiring that parents planning to remove their children from public school provide the school district with at least 10 days’ written notice.

“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 that Congress never intended that parents be required to place their child in a patently inappropriate placement in order to qualify for tuition 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 proper individualized education programs for their children 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. Mr. Freston had never enrolled his son in the 1.1 million-student New York City public schools. ("High Court Case Could Rein In Private Placements Under IDEA," Sept. 26, 2007.)

The parent’s side seemed to get relatively little support from the justices, except at one point, when Justice Samuel A. Alito Jr. asked Mr. Koerner, the school district’s lawyer: “What possible purpose is served by simply requiring the student to be in a placement that is by definition not providing [a free, appropriate education] for this very short period of time? It makes no sense whatsoever.”

Chief Justice John G. Roberts Jr. questioned both sides aggressively, but by the end of the arguments he seemed to accept that Congress was seeking to limit reimbursement for unilateral private placements with the 1997 provision in the IDEA, which said such reimbursement was available only when the student had “previously received special education and related services under the authority of a public agency.”

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 New York City parents—“in Manhattan in particular,” the justice said—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 IDEA provision suggests that school districts “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 gave no public explanation for why he did not take part. 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, Issue 07, Pages 17-18

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