Supreme Court to Review Special Education, Strip-Search Cases

By Mark Walsh — January 16, 2009 5 min read

The U.S. Supreme Court today agreed to add two more education cases to its docket for this term—one involving special education and the other stemming from a lawsuit over the strip-search of a middle school student by school officials looking for over-the-counter or prescription drugs.

In the special education case, the justices will return to an issue they deadlocked over in their last term: 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.

With Justice Anthony M. Kennedy recusing himself, the other justices tied 4-4 in a case in 2007 over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win reimbursement of private school tuition for a child with disabilities who had never even enrolled in the city’s school system. The tie in Board of Education of New York City v. Tom F. upheld the tuition reimbursement in that case, but set no national precedent.

The new case, which presumably does not present any barrier to Justice Kennedy’s participation, is from the Forest Grove school district in Oregon, which is appealing a federal appeals court ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after the school district’s evaluation had determined the boy was not eligible for special education.

The district re-evaluated the student, and determined that he had attention deficit hyperactivity disorder, but that it wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for the private residential program where they had enrolled their son, for which monthly tuition was more than $5,000.

A federal district court reversed the hearing officer, but a panel of the U.S. Court of Appeals for the 9th Circuit held 2-1 last April that the parents were entitled to reimbursement. The majority said that language in the IDEA that such tuition reimbursements for such unilateral private school placements were available only to students “who previously received special education and related services” did not “create a categorical bar to recovery of private school reimbursement for all other students.”

The district’s appeal in Forest Grove School District v. T.A. (Case No. 08-305) was joined in a friend-of-the-court brief filed by the National School Boards Association, the American Association of School Administrators, and the National Association of State Directors of Special Education, which argued that the 9th Circuit court’s decision would increase the costs of special education by encouraging parents to avoid the process of working with a school district to develop and individualized education program, or IEP, for a student with disabilities.

“The 9th Circuit’s decision allows those parents to treat the IEP process as a potential lottery ticket to a government-funded private school education,” the school groups said.

The parents’ brief in opposition is here.

Strip-Search Case

The strip-search case has also attracted attention in education law circles.
In July, the 9th Circuit court ruled that a strip search of an 8th grader by school authorities looking for Ibuprofen pills violated the student’s rights under the Fourth Amendment.

An panel of the court ruled 8-3 on July 11 that officials at an Arizona middle school “acted contrary to all reason and common sense as they trampled over” the privacy interests of student Savana Redding. And by a vote of 6-5, the panel held that the assistant principal who ordered the strip search was not entitled to qualified immunity from liability in the student’s lawsuit.

Redding was searched in 2003 as part of an investigation into the possession of over-the-counter medications by students at Safford Middle School in the Safford school district. After receiving a report that Redding, who was 13 at the time, had been distributing prescription-strength Ibuprofen pills to fellow students, school officials searched the girl’s backpack, then asked a female administrative assistant to search the girl’s clothing. Redding had to remove her pants, lift the waist band of her underpants, and lift her shirt and pull out her bra band, according to court papers. No contraband was found.

Ms. Redding and her parents challenged the school officials’ actions as a violation of her Fourth Amendment right against unreasonable searches. They lost before a federal district court and before an initial three-judge panel of the 9th Circuit court. But the 9th Circuit granted a review by a larger panel of judges.

In that decision last July, the 9th Circuit majority said the strip-search was “excessively intrusive,” especially considering that school officials were relying on an uncorroborated tip from another student who had been caught in possession of the pills.

The court further said that it should have been clear to the school officials under the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O. that the strip search was unreasonable, and thus an assistant principal who ordered the search did not merit qualified immunity.

In T.L.O., the Supreme Court upheld the search of a student’s purse for contraband and held that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable at its inception and was reasonable in scope.

“The guidance provided by T.L.O. should have been clear to the school officials, who undertook the professional obligation to balance properly the order of the school with the individual liberties of the students who enter the school,” the court said.

The school district’s appeal of that decision in Safford Unified School District v. Redding (No. 08-479) was also joined by national school groups, in this case the NSBA and the AASA, which called for the Supreme Court to provide greater guidance to school administrators about the legality of student searches.

The 9th Circuit court’s ruling “unfairly places school officials in the position of being sued and held personally responsible for good faith decisions intended to protect the health and safety of students entrusted to their care and tutelage,” the education groups said in their friend-of-the-court brief.

The Redding family’s brief in opposition is here.

The justices indicated that both cases will be heard in their April argument session, and decisions are expected by the end of the court’s term in June.

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