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School Choice & Charters

Court Is Split on IDEA Private-Placement Case

By Mark Walsh — October 11, 2007 3 min read
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The lone education case granted so far in the U.S. Supreme Court’s new term came to a quick conclusion this week as the justices divided equally over an appeal from the New York City school system about paying for private school placements under the main federal special education law.

The 4-4 tie in the case means that a federal appeals court ruling in favor of a New York City parent was affirmed without an opinion from the justices. The result, which was made possible by Justice Anthony M. Kennedy’s recusal from the case, carries little weight as a nationwide precedent.

At issue in Board of Education of New York City v. Tom F. (Case No. 06-637) was a question under the Individuals with Disabilities Education Act: Must parents of children in special education give public schools a try before enrolling such students in private schools and then seeking tuition reimbursement at public expense?

The case was argued Oct. 1, the first day of the court’s term. The outcome, announced Oct. 10, upholds a ruling by the U.S. Court of Appeals for the 2nd Circuit, in New York City, that the IDEA does not require children to have attended public schools before their parents can seek reimbursement for a so-called unilateral private school placement—a decision to enroll a child in private school without the assent of public school authorities.

The tie in the Supreme Court is a victory for Thomas E. Freston, a former top executive of Viacom Inc., who had battled the New York City school system over the proper education for his son, Gilbert, who has learning disabilities. At stake in the high court case was $21,819 in private school tuition for the student for the 1999-2000 school year. (“High Court Case Could Rein In Private Placements Under IDEA,” Sept. 26, 2007.)

“I am thrilled with this decision,” Mr. Freston said in an Oct. 10 statement. “Where a public school district does not offer an appropriate education to a child with learning disabilities, the law makes the opportunity available for private school tuition reimbursement. The court reaffirmed that fundamental principle today.”

Paul G. Gardephe, the lawyer who argued Mr. Freston’s case, pointed out that the appeals court’s ruling will remain in effect in the states making up the 2nd Circuit: Connecticut, New York, and Vermont.

The outcome is “clearly not mandatory outside the 2nd Circuit,” he said, although he noted that the U.S. Court of Appeals for the 11th Circuit, in Atlanta, has adopted the same view that public school enrollment is not required as a prerequisite to private school reimbursement under the IDEA.

Separate Appeal

The 1.1 million-student New York City system had argued that some parents don’t intend to enroll their children with disabilities in public schools but submit them for special education evaluations before placing them in private schools and then seeking public reimbursement.

During the oral arguments in the case, the justices spent considerable time weighing whether a 1997 amendment to the IDEA was meant to require children to be enrolled in public schools before their parents could seek private school tuition reimbursement.

As is its custom with such divided outcomes, the Supreme Court did not disclose how each participating justice voted. It also remained unclear why Justice Kennedy had removed himself from participation in the case.

Leonard J. Koerner, who represented the school system, said that he has argued six times before the justices as an appellate lawyer for New York City, and that this was the second time a case of his had ended in a tie. The other was in a 1988 case involving the city’s police department, when only eight justices participated because of a vacancy on the court.

“When you have an even number, a tie is always a possibility,” he said in an interview. “These are close cases.”

It is possible that the Supreme Court could return to the issue of private school placements under the IDEA sooner rather than later. Another IDEA appeal pending at the court, in a case from the Hyde Park school district in New York state, raises the same legal issue.

The high court, assuming Justice Kennedy did not have the same conflict that required his recusal in the New York City case, could grant review in Board of Education of the Hyde Park Central School District v. Frank G. (No.06-580). The court had placed the Hyde Park district’s appeal on the agenda of its Oct. 12 private conference.

If that case were granted review, there would be little doubt that Justice Kennedy would be the focus of the two sides’ legal briefs and arguments.

A version of this article appeared in the October 17, 2007 edition of Education Week as U.S. Supreme Court Divides in IDEA Private-Placement Case


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