UPDATE June 22, 2009: The U.S. Supreme Court today struck a blow for the rights of parents (and EdReps) in special education.
The student struggled over several years, throughout elementary school and into high school. During this time, the district considered the student's needs and found that he qualified for services under neither the IDEA or Section 504 of the Rehabilitation Act of 1973. Finally, as a junior in high school, the parents had their son assessed privately. The psychologist recommended placement in a special residential school, which the parents did.
When the parents requested reimbursement, the district refused, citing an amendment to the IDEA which could be interpreted to require that the child have received services from the district before it would be required to reimburse. Since the student had never received any special education services from the district, it argued, it was not obligated to reimburse the parents. The hearing officer found for the parents and ordered reimbursement. However, the district appealed to the U.S. District Court which reversed, citing the 1997 amendment to the IDEA. After the U.S. Court of Appeals for the Ninth Circuit reversed the District Court, the U.S. Supreme Court granted a petition for Writ of Certiorari to the Ninth Circuit. Today, it affirmed the Ninth Circuit decision in favor of the parents.
The opinion by Justice Stevens, writing for the six justice majority held ". . . IDEA authorizes [tuition] reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school." (slip opinion p. 1, ____ S.Ct. ____, 2009 WL 1738644, 77 USLW 4550)
The decision is not an unfettered win for the parents. The hearing officer or the District Court must consider the parents' behavior as well as the district's actions when arriving at a decision concerning reimbursement under the equitable reimbursement section of the IDEA, 20 USC §1415(i)(2)(C). The Court held that the District Court was incorrect to have interpreted 20 USC §1412(a)(10)(C) as prohibiting reimbursement of tuition to parents of private school kids to whom the District never offered special education services, despite the Court's holding in School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 370. The Supreme Court remanded the case to the District Court with instructions to reconsider the parents' petition for reimbursement, bearing in mind the factors set forth in Burlington.
This decision is particularly interesting because the Court recently in Board of Ed. of City School Dist. of New York v. Tom F. under a similar fact situation, the justices split 4-4 with Justice Kennedy recusing. One might have expected the Court to have issued its opinion with a closer 5-4 decision here in Forest Grove, rather than the 6-3 determination.
Further information about the case may be found at the SCOTUSBlog WIKI site and at Wrightslaw.com.
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UPDATE January 16, 2009: The Forest Grove School District has filed a Petition for Writ of Certiorari with the U.S. Supreme Court (Docket 08-305) seeking clarification and a resolution of the conflict among the circuits. The Petition was originally distributed for consideration at the October 17th conference. However, time was extended to respond to the Petition until at least December 3d. The Supreme Court has granted the Petition for Certiorari. The briefing schedule will probably carry the case to the end of Term, leaving oral argument and the Court's opinion for next Term.
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(May 24, 2008)
The issue is whether a local educational agency (LEA) or school district is required to pay for or reimburse parents for private school tuition for a student who never received special education and related services from a school district. This issue has recently been before the U.S. Supreme Court in New York City Board of Education vs. Tom F. on certiorari from the Second Circuit. In Tom F., the Supreme Court divided equally, 4 to 4, with Justice Kennedy recusing himself, having the effect of affirming the Second Circuit's opinion favoring the parents without setting a precedent.
Now, on appeal from a decision of the U.S. District Court in Oregon, in Forest Grove School District vs. T.A. [--- F.3d ----, 2008 WL 1849174, 08 Cal. Daily Op. Serv. 4931, C.A.9 (Or.), April 28, 2008 (NO. 05-35641)], The Ninth Circuit finds that it is not necessary for a disabled child from Oregon to have received special education services from the school district in order to be eligible for tuition reimbursement. In doing so, the Ninth Circuit joins the Second and Eleventh Circuits. The Forest Grove opinion can be downloaded here.
The parties and the court agreed that T.A. never received special education and related services from a public agency and therefore was not eligible for reimbursement under [20 U.S.C.] §1412(a)(10)(C)(ii). The court set its task as determining whether students, such as T.A., nonetheless "remain eligible for private school reimbursement, as they were before 1997, under principles of equity pursuant to § 1415(i)(2)(C)."
The court found that the provisions of the section are not exclusive. Rather, it found that the conditional language requiring the student to have "previously received special education and related services" were a condition precedent to recovery under that section. Further, it cited with approval the Second Circuit's reasoning that the section is ambiguous because the text does not clearly bar recovery and any such bar would be in "tension with the broader context of the statute."
"In amending the IDEA in 1997, Congress chose to specify in §1412(a)(10)(C) the requirements and factors to be considered by district courts and hearing officers when deciding whether to award reimbursement to students who previously received special education and related services. For students who never received special education and related services, however, the new provisions of §1412(a)(10)(C) simply do not apply. For those students, reimbursement may be sought only under principles of equity pursuant to §1415(i)(2)(C)."
After an analysis of the equities, the Ninth Circuit remanded the case to the District Court to determine the equitable amount of reimbursement due the student consistent with its opinion.
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