By Brian Jason Ford, Esq., Legal Editor
This post first appeared as a special edition of the DBYD Difference, the education law newsletter of Dischell, Bartle, Yanoff & Dooley, P.C.
It’s just a little bit of history repeated…
Analysis of Forest Grove v. T.A. – SCOTUS’s latest take on the IDEA
A special edition of the DBYD Difference
In this special edition of the DBYD Difference, we will cover the Supreme Court’s decision in Forest Grove v. T.A. in an easy-to-digest Q&A format. Also, I am going to play fast and loose with syntax. So you will have an easier read, I will sometimes refer to the student’s entitlement to tuition reimbursement even though the parents are technically entitled.
Q: Where can I read the decision for myself?
A: Here: http://www.supremecourtus.gov/opinions/08pdf/08-305.pdf. You’ll get the majority opinion as well as a dissent by Justice Souter, who was jointed by Justices Scalia and Thomas.
Q: What issue was the Court deciding?
A: The Court was trying to figure out if a student who had never received special education from his public school district could be eligible for private school tuition reimbursement.
Q: What are the basic facts of the case?
A: T.A. was a student in Forest Grove for many years. His teachers all recognized ADHD-like behaviors, but T.A. was not evaluated until his freshman year. At that point, T.A. received an evaluation from the District, and was found ineligible for special education. In T.A.’s junior year, he obtained a private evaluation and received an ADHD diagnosis from the private evaluator. The private evaluator also recommended placement in a private, residential school. T.A.’s parents took the evaluator’s advice and enrolled him in the private, residential school. At this point T.A. parents hired an attorney and, to make a long story short, sought tuition reimbursement from Forest Grove.
Q: What is so important about 1997?
A: Until 1997, the IDEA said nothing about tuition reimbursement explicitly. Rather, the IDEA said that students are entitled to “such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). The Supreme Court used this language to allow tuition reimbursement in two very important cases: School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359 (1985) and Florence County School Dist. Four v. Carter, 510 U. S. 7 (1993). The Burlington and Carter cases established a framework by which courts determine tuition reimbursement cases. Congress amended the IDEA in 1997 to address tuition reimbursement directly. The law now says quite a few things about tuition reimbursement, but the part that matters most for this case reads as follows:
“If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.”
You can find the above at 20 U.S.C. § 1412(a)(10)(C)(ii). The emphasis is mine. For our purposes, “under the authority of a public agency” means “from a public school district.”
Q: What did Forest Grove argue?
A: Forest Grove argued that the italicized language is a limitation on parents’ rights to tuition reimbursement. Their logic is that if students who previously received special education from their district are entitled to tuition reimbursement, then students who did not receive special education from their district are not entitled to tuition reimbursement.
Q: What did T.A. argue?
A: T.A. argued that the language in the IDEA entitling students to “ such relief as the court determines is appropriate” was not changed in 1997. It is this unchanged language that forms the basis of Burlington and Carter – the cases that allow tuition reimbursement even before the IDEA said anything about tuition reimbursement. Therefore, T.A. argued, courts could still award tuition reimbursement as equitable relief despite the new language about students who previously received special education.
Moreover, Forest Grove’s argument would create an unfair loophole for school districts – according to T.A. If you use Forest Grove’s logic, school districts could avoid all tuition reimbursement by simply withholding special education. According to T.A., Forest Grove is really saying: if you never received special education you can never be entitled to tuition reimbursement; and Forest Grove gets to decide if you get special education to begin with.
To be fair, I should note that Forest Grove disagreed with this characterization more than a little bit. Forest Grove claimed that the IDEA and state law determined who gets special education.
Q: Cut to the chase! Who won?
A: T.A. won. The Court decided that the 1997 amendments impose no “categorical bar” to tuition reimbursement, even if the student had never received special education from a public school before enrollment in the private school.
Q: Huh?
A: The Court said that the general rule in Burlington / Carter still applies. When school districts fail to offer FAPE (a free, appropriate public education) to students who qualify for special education under the IDEA, parents are allowed to go out and buy FAPE on their own… then seek reimbursement from their school district. Whether or not the school district ever offered an IEP to the student does not matter. All that matters is that (1) the student was entitled to FAPE, (2) the school district did not offer FAPE, and (3) the private school was appropriate to meet the student’s needs.
Q: So the Court is just upholding old cases? Did anything change?
A: The answer to this question depends largely on where you live. One of the reasons why SCOTUS took this case was because different courts in different jurisdictions answered this question differently. If you live in a place where courts placed a blanket prohibition on tuition reimbursement unless the student received an IEP prior to private placement, your life just changed quite a bit.
Q: BONUS QUESTION FOR EDUCATION LAW NERDS – What about limitations on reimbursement such as those provided at 20 U.S.C. § 1412(a)(10)(C)(iii)?
A: Great question! The Court did not answer it. Instead, they sent that question back down to the lower courts to figure it out. This clearly implies that the limitations are still in place and, at the end of the day, T.A.’s parents may still be left holding the bag.
This post is subject to a disclaimer.
