Parents can get private school tuition without trying public school
The U.S. Supreme Court has ruled 6-3 that the Individuals with Disabilities Education Act (IDEA) authorizes reimbursement for private school placement of a special education student when a public school fails to provide that student with a free appropriate public education (FAPE), even if the student has not previously received special-education services from the public school. The Court affirmed a holding by the U.S. Court of Appeals for the Ninth Circuit that language added to IDEA in 1997 does not categorically bar reimbursement when a parent unilaterally places in private school a child who has not previously received special-education services through the public school.
Justice Stevens, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Alito, wrote the majority opinion. The Court began by stating that its decisions in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985) and Florence County School District Four v. Carter, 510 U. S. 7 (1994), established that school districts that failed to provide a free appropriate public education (FAPE), whether because they propose an inadequate individualized education plan (IEP) or fail to propose an IEP at all, can be required to reimburse parents for private school tuition. This same reasoning applies with equal force in this new case, the Court found, unless the 1997 amendments to IDEA require a different result. Those amendment added language to the effect that private school reimbursement may be awarded in the case of “a child with a disability, who previously received special education and related services under the authority of a public agency.” The Court found this language to be “elucidative rather than exhaustive”—that it merely provides guidance for one common factual scenario. The provision did not change other language in IDEA giving courts broad authority to grant “appropriate” relief, including reimbursement for the cost of private special education when a school district fails to provide a FAPE. In the absence of clearly stated Congressional intent to repeal that existing provision or to abrogate the Court’s rulings in Burlington and Carter, the Court was bound to continue to read IDEA as still authorizing the relief the parents here were seeking. The Court rejected the school district’s argument that the 1997 language was precisely such an explicit repeal. The language “says nothing about the availability of reimbursement when a school district fails to provide a FAPE,” the Court found. In addition, “[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.” The Court opined: “It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether.” The Court rejected the school district’s policy concerns about imposing higher costs and undermining collaboration among parents and schools.
Justice Souter, joined by Justices Scalia and Thomas, filed a dissenting opinion. The dissent attacked the majority’s interpretation of the 1997 amendments, stressing that “if Congress did not mean to restrict reimbursement authority by reference to previous receipt of services, why did it even raise the subject?” To what it called the "overstretching” in the majority's notion that Congress was merely “taking care to mention one of a variety of circumstances in which such reimbursement is permitted,” the dissent answered: “When a mother tells a boy that he may go out and play after his homework is done, he knows what she means.” The dissent read the 1997 amendments “as written on the assumption that the school authorities can be expected to honor their obligations and as stating the general rule that unilateral placement cannot be reimbursed.” Any other interpretation would render the amendments pointless. The dissent also rejected the concern that unless the parents can recover tuition expenses, then a school district could thwart the purpose of IDEA simply by refusing to find a child eligible for special-education services no matter how compelling the child’s need. The “majority’s suggestion overlooks the terms of the IDEA process, the substantial procedures protecting a child’s substantive rights under the IDEA, and the significant costs of its rule,” the dissent argued.
Forest Grove School District v. T.A., No. 08-305 (U.S. June 22, 2009)
[Legal Clips Editor’s Note: For background on the case, including a link to NSBA’s amicus brief in support of Forest Grove, see below.]
NSBA School Law pages on Forest Grove Sch. Dist. v. T.A.