Published Online: June 22, 2009

Supreme Court Backs Reimbursement for Private Tuition

Federal law authorizes reimbursements for private school tuition, even when a child has never received special education services from a public school, the U.S. Supreme Court ruled today.

The justices ruledRequires Adobe Acrobat Reader 6-3 in Forest Grove School District v. T.A. (Case No. 08-305) that 1997 amendments to the Individuals with Disabilities Education Act meant to rein in the costs of private school placements did not remove the power of hearing officers and federal judges to order such reimbursements under the proper circumstances.

“A reading of the act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services,” Justice John Paul Stevens wrote for the majority.

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His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Samuel A. Alito Jr.

Justice David H. Souter, in a dissent joined by Justices Antonin Scalia and Clarence Thomas, warned that the majority’s decision could prove costly for school districts.

“Special education can be immensely expensive, amounting to tens of billions of dollars annually and as much as 20 percent of public schools’ general operating budgets,” Justice Souter wrote.

“The more private placement there is, the higher the special education bill, a fact that lends urgency to the IDEA’s mandate of a collaborative process” in developing individualized education plans under the law, Justice Souter added.

The ruling is winning praise from some advocates for students with disabilities, but criticism from national groups representing teachers and school boards.

“We think the court got it wrong,” said Michael D. Simpson, the assistant general counsel of the Washington-based National Education Association, which filed a friend-of-the court brief supporting the school district’s stance. “Our fear is that it’s actually going to have a tremendous and very adverse impact on the money that public schools receive and on their ability to provide special education services because the money is going to be reduced.”

But Curtis L. Decker, the executive director of the Washington-based National Disability Rights Network, which filed a friend-of-the-court brief on behalf of the family, said the ruling sends an important message to school districts, which he argues in some cases fail to act in the best interests of families.

“Our experience across the country is it does take parents being aggressive to get some school districts to follow the process” under the IDEA for appropriately identifying, evaluating, and serving special-needs students, he said. “I hope the positive impact will be a clear message to schools that they can’t sort of get out from under their responsibility by just ignoring the child and putting the parents off.”

Second Time Around

The case raised the question of whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.

The court took up the same issue in 2007, in Board of Education of New York City v. Tom F., and deadlocked 4-4. Justice Kennedy had recused himself in the case for undisclosed reasons. (“Court Is Split on IDEA Private-Placement Case,” Oct. 17, 2007.)

The new case was from the 6,000-student Forest Grove district in Oregon. The district appealed a ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after a district evaluation had determined that the boy was ineligible for special education.

The district eventually determined that the student had attention deficit hyperactivity disorder, but that the disorder wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for enrolling their son in a residential program with tuition of more than $5,000 a month.

A federal district court reversed the hearing officer, but a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held in a 2-1 ruling last year that the district court should reconsider whether the parents were entitled to reimbursement.

The IDEA says tuition reimbursements for such unilateral private school placements are available only to students “who previously received special education and related services.” The appeals court held that the language, added in the 1997 reauthorization of the IDEA, did not “create a categorical bar to recovery of private school reimbursement for all other students.”

Reimbursement Authorized

That decision was then appealed to the Supreme Court, which heard arguments in May. (“Reimbursement for Private Placement Again Topic of Supreme Court Scrutiny,” May 13, 2009.)

In his opinion upholding the 9th Circuit today, Justice Stevens said there was no evidence Congress intended to “supersede” two other Supreme Court decisions that authorized reimbursement for private school tuition under the IDEA.

“Consistent with our decisions in [School Committee of] Burlington [v. Department of Education of Massachusetts] and [Florence County School District No. 4 v.] Carter,” Justice Stevens wrote, “we conclude that IDEA authorizes reimbursement for the cost of private special-education services when a school district fails to provide a [free, appropriate public education] and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.”

Francisco Negron, the general counsel of the Alexandria, Va.-based National School Boards Association, which filed a friend-of-the-court brief supporting the Oregon district, said his organization was disappointed by the ruling and may turn to Congress for a remedy.

“The question for us now is whether we seek a legislative fix,” he said, to make clear that a family may not seek reimbursement for unilaterally placing a child in private school to get special education services without first receiving such services from a district.

Overall, Mr. Negron said he fears the ruling will discourage collaboration between public schools and families “in determining the best placement for a special-needs child.”

Lindsay E. Jones, the senior director for policy and advocacy for the Council for Exceptional Children, a Reston, Va.-based professional organization of educators who work with students with special needs, echoed this concern.

“We feel it undermines the collaborative intent and spirit and structure of IDEA,” she said of the ruling. “It allows parents to bypass the special education process altogether.”

Vol. 28, Issue 36

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