Published Online: May 12, 2009
Published in Print: May 13, 2009, as Reimbursement for Private Placement Again Topic of Supreme Court Scrutiny

Reimbursement for Private Placement Again Topic of Supreme Court Scrutiny

The U.S. Supreme Court is expected to further flesh out the circumstances under which a parent can seek reimbursement from a school district for the private education of a student with disabilities, under a case heard before the justices last month.

At issue in Forest Grove School District v. T.A. (Case No. 08-305) is whether parents are entitled to recover the costs for “unilaterally” placing their child in a private school to get special education services, if the student had never received such services in the public school system.

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 Congress added to the law 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 that the district is misreading the federal special education law.

“There is no basis for reading the statute to create what effectively would be an incentive for districts to stonewall,” said Eric D. Miller, a U.S. Department of Justice lawyer.

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. ("Court Is Split on IDEA Private-Placement Case," Oct. 17, 2007.)

Potential for Delay

During the hearing, several justices worried aloud 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?” said Justice David H. Souter, who recently announced that he plans to step down from the bench this year. “Once you get into [court] appeals, this thing can go on for years.”

“That’s correct, but there’s no need to wait years,” replied Gary S. Feinerman, the lawyer for the district, saying the federal law has a speedy process to decide such matters.

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

Mr. Feinerman said the Forest Grove district did, in fact, develop an IEP for the student after a hearing officer ruled against the district. The student at that point was already at the 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 during his junior year from the Forest Grove district. They sent him to a private boarding school for youths with behavioral or emotional problems, as well as students with special learning needs.

According to court papers, 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, his parents hired a lawyer and requested an administrative hearing under the IDEA. A district evaluation concluded that their son had ADHD, but that it wasn’t affecting his educational performance enough to merit special education services.

But the hearing officer later ruled that the student’s ADHD was a qualifying disability under the IDEA and that he should be reimbursed by the school system for attending the private school, at which tuition exceeded $5,000 per month.

The district then filed a lawsuit challenging the reimbursement.

Central to the debate is language Congress added to the IDEA in 1997 dealing explicitly with tuition reimbursement for parents who "unilaterally" enroll their children in private schools without the consent or referral of their home district.

Last April, a panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco sided with the family. By a vote of 2-1, it said Requires Adobe Acrobat Reader a student who had never received special education services from the district was "not barred as a matter of law" from being repaid for private school costs.

In its brief to the high court, lawyers for the district argue that the 9th Circuit’s reading of the IDEA "places a lower burden" on parents whose children had never received special education from a district, thereby creating a "perverse incentive for parents to preemptively enroll a child in private school, without engaging the district. ...

Opening the Floodgates?

But during the oral argumentsRequires Adobe Acrobat Reader, 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.

Mr. Miller, the U.S. Department of Justice lawyer, 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 said a ruling in the parents’ favor would simply assure that parents could seek reimbursement. “We’re not suggesting that reimbursement would be mandatory,” he said.

Vol. 28, Issue 31, Page 19

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