Justices Weigh Special Education Tuition Reimbursements

By Mark Walsh — April 28, 2009 4 min read

A special education case in the U.S. Supreme Court today showed that some justices are concerned about parents getting a fair shake in the system, while others worry that school districts and taxpayers must shoulder the burden for expensive private schools for some students.

“I think we’ve got to assume that Congress has some concern for the parents who correctly say, this [individualized education plan] is no good, it just can’t be done in the school system, and the kid needs a special school,” Justice David H. Souter said to the lawyer representing an Oregon school district.

But Chief Justice John G. Roberts Jr. later asked the lawyer for the parents in a dispute with the school district why they shouldn’t be required to at least try a public school plan for their child before seeking reimbursement for private school tuition.

“What’s wrong with 10 days?” the chief justice said to David B. Salmons, in reference to a suggested minimum time for families to try out an IEP before pulling their children from the public schools. “It’s a big expense you are asking the school district to incur, that will take away funds from other programs. And all they are saying is, give it a try for 10 days, and if it doesn’t work out, then you can go.”

Salmons said that may not work because IEPs are often developed in the spring for the next school year, and parents need to decide by summer where to place their children.

The issue in Forest Grove School District v. T.A. (Case No. 08-305) is is 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. (My blog preview is here.)

The justice believed to be holding the cards in the case was hard to read. Justice Anthony M. Kennedy had recused himself in a case raising the same issue two years ago, and the participating justices deadlocked 4-4, which upheld a lower court’s ruling without setting a precedent.

At one point, Justice Kennedy pressed the district’s lawyer, Gary S. Feinerman, on his argument that the federal Individuals with Disabilities Education Act requires children to have received special education services from a public school system before they could be eligible for private school tuition reimbursement.

“The problem with your position is that it seems in a way formalistic and in some cases to encourage intransigence,” Kennedy said.

Later, Justice Kennedy suggested he was looking for a middle ground in which parents could win reimbursement when their children had not received public school services, but only if they met a higher burden of proof.

“Suppose we thought it were sensible to add ... the further rule that the school district is presumed to have made the correct diagnosis and, if there is a plan in that kind of case, that the plan was adequate, and that the parent would have to show by clear and convincing evidence that this is not so, rather than just inventing it and pulling it out of the sky,” Kennedy said in a dialogue with Eric D. Miller, an assistant to the U.S. solicitor general who was arguing as a friend-of-the-court on the parents’ side.

Miller said that might be difficult to reconcile with the IDEA’s language calling for an easier “preponderance of the evidence” standard.

“But ... it would be within this court’s discretion, I think, to prescribe principles to guide the exercise of the district courts’ equitable discretion,” the U.S. lawyer said.

Justice Ruth Bader Ginsburg joined Justice Souter in aggressively questioning the school district’s lawyer, while Justice Antonin Scalia was sympathetic, along with Chief Justice Roberts, to the district.

“Of course, the parents here didn’t run off to a private school only after
the school district had found that their child didn’t require any special education, did they?” Scalia said to Feinerman, the district’s lawyer. “They put him in a private school without even consulting the schools. ... Saying, by the way, we can get some money. How much much money are you talking about imposing on the school district here?”

“Well, it’s -- the tuition is $5,200 a month,” the district’s lawyer said.

“A month?” Justice Scalia said, somewhat in mock surprise, since the figures were provided in the briefs.

Later, Scalia pressed the Obama administration’s lawyer about cases where the parents had never even enrolled their children in public school, yet sought reimbursement for private school tuition. Those facts were much closer to the case on which the court deadlocked in 2007, New York City Board of Education v. Tom F.

Miller said there would be no “categorical bar” to reimbursement in that situation, but “a district court confronted with those facts would most likely conclude that the parents had not genuinely sought a free appropriate public education and hadn’t appropriately cooperated with the school district.”

Justice Kennedy asked Miller about a hypothetical situation in which parents pull their child from the public schools, and then have a choice of appropriate private schools, one charging $5,200 a month, and the other charging “considerably less.”

“Is the hearing examiner entitled to reimburse only for the lower amount, or is the parent entitled to send the child to the more expensive school?” Kennedy said.

Miller assured him that under the court’s special education cases, hearing officers and courts may examine the reasonableness of the expense and can deny all or part of it.

A decision in the case in expected by late June. (The oral argument transcript is here.)

A version of this news article first appeared in The School Law Blog.


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