Published Online: April 28, 2009

High Court Hears Special Education Case

The U.S. Supreme Court today heard a case that is expected to further flesh out the circumstances under which a parent can seek reimbursement from the public schools for the private education of a student with disabilities.

At issue in Forest Grove School District v. T.A. (Case No. 08-305) is whether a student who never received special education services from a public school system may, nevertheless, be entitled to be paid back by that district for the costs of enrolling in a private school in order to receive such services.

A lawyer for the 6,000-student Forest Grove school district, near Portland, Ore., told the justices that the federal Individuals with Disabilities Education Act bars such reimbursement, pointing to provisions added to the law by Congress in 1997.

But lawyers for the Obama administration and the family of the student in question, referred to only as T.A., told the justices during the oral argumentsRequires Adobe Acrobat Reader that the district is misreading the federal special education law. In this case, the student had long been enrolled in the public school district, but had not received special education services while there.

The high court took up essentially the same issue in 2007 in Board of Education of New York City v. Tom F., but that case was deadlocked at 4-4, with Justice Anthony M. Kennedy recusing himself for undisclosed reasons. As is its custom with such divided outcomes, the court did not disclose how each participating justice voted. ("Court Is Split on IDEA Private-Placement Case," Oct. 17, 2007.)

Potential for Delay

During today’s oral arguments, several justices worried that if a family and school district clashed over whether a student was eligible for special education services—as was the case here—the child could be left without services for a long time while the eligibility was decided.

“Isn’t that the kicker here?” Justice Souter said. “Once you get into [court] appeals, this thing can go on for years, and you can’t wait years when ... a kid is in this kind of condition.”

“That’s correct, but there’s no need to wait years,” Gary S. Feinerman, lawyer for the Forest Grove district, replied. He said the federal law has a speedy process under which such matters generally are decided, though he conceded that, theoretically, the matter could be drawn out.

Chief Justice John G. Roberts Jr. seemed to suggest that it would be reasonable for a family to try out special education services provided by a district before going elsewhere.

“All they would have to do is try the plan for 10 days,” he said.

Under the IDEA, reimbursement for private school tuition may be reduced or denied if parents fail to give written notice to districts 10 days before unilaterally withdrawing their children and enrolling them in private schools, or if during an individualized education program meeting, they fail to inform district officials of their plans to enroll their children in private schools.

Mr. Feinerman noted that the Forest Grove school district did, in fact, develop an individualized education program for T.A. after a hearing officer ruled against the district. The student at that point was already in his private boarding school and did not try out the IEP.

What’s ‘Appropriate’

The current case stems from the decision in 2003 by the parents of T.A. to withdraw their son in the spring of his junior year from the Forest Grove district. They sent him, instead, to a private boarding school for youths with behavioral or emotional problems, as well as students with special learning needs.

T.A. had long been struggling academically and was showing increasing behavioral problems, was depressed, and was using marijuana. Two years before, a district evaluation had concluded that he did not have a learning disability and therefore was ineligible for special education services, though notes from a district meeting suggested he might have attention deficit hyperactivity disorder, or ADHD.

After enrolling T.A. in the private boarding school, Mount Bachelor Academy in Prineville, Ore., his parents hired a lawyer and requested an administrative hearing under the IDEA. A district evaluation conducted in response concluded that their son had ADHD, but that it wasn’t affecting his educational performance enough to merit special education services.

The hearing officer, however, later ruled that T.A.’s ADHD was a qualifying disability under the IDEA and that he should be reimbursed by the school system for the costs of attending Mount Bachelor Academy, to the tune of more than $5,000 per month.

The Forest Grove school system filed a lawsuit challenging the reimbursement, the case that now has worked its way up to the Supreme Court.

The IDEA seeks “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” Courts are authorized to order “appropriate” relief, which has been interpreted to include tuition reimbursement.

In 1997, Congress amended the law to deal explicitly with tuition reimbursement for parents who “unilaterally” enroll their children in private schools without the consent or referral of the district.

Last April, a panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco sidedRequires Adobe Acrobat Reader with the family. By a vote of 2-1, it said that “such a student is not barred as a matter of law” from being repaid for the private school costs. The appeals court sent the case back to the district court, which it said “should consider all relevant factors in determining whether to grant reimbursement and the amount of the reimbursement.”

In their brief to the Supreme Court, lawyers for the family contend that nothing in the 1997 amendments alters the “central entitlement” of students with disabilities to receive a “free appropriate public education.” Nor do the amendments bar “appropriate” relief, including tuition reimbursement, the lawyers say.

Opening the Floodgates?

At the oral arguments, however, Chief Justice Roberts wondered whether a ruling in favor of the parents would likely spur more parents to seek private education for their children at public expense, with the potential to “vastly” expand the liability of school districts to pay such costs.

“Isn’t that a pertinent factor?” he asked.

But Eric D. Miller, a lawyer for the U.S. Department of Justice, said “there’s no basis for supposing that there would be a vast expansion of liability,” arguing that the instances of students being “unilaterally” placed in private schools to get special education services are “quite rare.”

Mr. Miller also emphasized that if the justices found in the parents’ favor, such a ruling would not set a precedent that compels districts to pay for private education for students who previously did not receive special education services from their districts. He said it would simply assure that parents could seek reimbursement.

“We’re not suggesting that reimbursement would be mandatory,” he said.

Justice Antonin Scalia seemed to raise concerns about the potential costs to school districts for paying private school tuition.

“How much money are you talking about imposing on the school district here?” he asked Mr. Feinerman, the lawyer for the district.

“Well, ... the tuition is $5,200 a month,” Mr. Feinerman said.

“A month?” the justice replied, seemingly for emphasis.

Widespread Interest

The Supreme Court case has attracted nearly a dozen friend-of-the-court briefs, including one from the Obama administration arguing in favor of the family.

In their brief, lawyers for the Justice and Education departments argue that the district’s interpretation “would produce absurd results, especially in cases like this one, where the only reason the child did not receive public special education is that the school district wrongly refused to provide it.”

But another friend-of-the-court brief, this one filed by lawyers for the 3.4 million-member National Education Association, takes issue with this argument.

“The basis for the tuition reimbursement award was, in short, not a finding that the school district could not or would not make a free appropriate public education available to the child, but rather simply a determination that it had failed to do so—in this instance by erroneously concluding that T.A. was not eligible for IDEA services,” the NEA says.

The union argues that “such mistakes could readily be corrected” through the cooperative process established under the law for families and schools “if the parents’ objective was indeed to obtain for their child an appropriate education in the public schools, rather than to create a record that would permit an award of private school tuition.”

Although the 4-4 Supreme Court deadlock in 2007 on a similar case suggests the vote may well be close in this case, and that Justice Kennedy could well be the swing vote, there is a notable difference in the circumstances of the two lawsuits.

In the New York City case, the student, the son of a wealthy media executive, had never been enrolled in the city’s public school system before his father sought reimbursement from the city for a private school placement.

During the 2007 oral arguments, Justice Scalia repeatedly raised concerns that savvy New York City parents might be trying to manipulate the system to get compensated for private school tuition when they had no intention of enrolling their children in the public schools.

By contrast, T.A. was enrolled in the Forest Grove district for most of his precollegiate education.

Vol. 28, Issue 31

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