e-Bulletin: Unclear What Effect Supreme Court Ruling Will Have on Private Tuition Reimbursement

The U.S. Supreme Court, in a 4-4 per curiam opinion, resolved an important special education issue in favor of parents in New York.  On October 10th, the High Court let stand a 2d Circuit ruling holding that parents can seek private school reimbursement under the Individuals with Disabilities Education Act, even though their child never received special education services from a New York public school district.  The case is Board of Education of the City School District of the City of New York v. Tom F.

While parents and their advocates cheer the decision, Districts fear that loosening reimbursement criteria could make it easier for parents to fund private placements with public money.  However, it is unclear what impact the Court's decision will have outside the 2d Circuit (which includes only Connecticut, New York, and Vermont).  Because Justice Anthony Kennedy recused himself, there is no majority opinion and therefore no national precedent.

In Tom F.,the 2d Circuit decided the private school where parents of a 15-year-old with a specific learning disability placed their son offered him a free appropriate public education.  The District conceded that its offer of a 25-student classroom was inappropriate, based on evaluations and recommendations, all of which indicated the Student needed a small-class setting.

Despite its failure, the District argued it had an "absolute defense" to parents' denial of FAPE claim -- the Student had never been enrolled in the District.  It confidently asserted the IDEA permits reimbursement only where a child has previously received special education and related services.  However, the 2d Circuit didn't see it that way and found the IDEA anything but clear on this point. 

Combing carefully through the statute, the 2d Circuit concluded it was, "unreasonable to suggest that [Student's] parents were legally required to engage in such a useless and potentially counterproductive exercise, given [Student's] 'need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional, and psychological deterioration.'"

For more information on this decision, please contact Best Best & Krieger's School Law Practice Group. ______________________________________________________________