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Justices Weigh Special Education Tuition Reimbursements


A special education case in the U.S. Supreme Court today showed that some justices are concerned about parents getting a fair shake in the system, while others worry that school districts and taxpayers must shoulder the burden for expensive private schools for some students.

"I think we've got to assume that Congress has some concern for the parents who correctly say, this [individualized education plan] is no good, it just can't be done in the school system, and the kid needs a special school," Justice David H. Souter said to the lawyer representing an Oregon school district.

But Chief Justice John G. Roberts Jr. later asked the lawyer for the parents in a dispute with the school district why they shouldn't be required to at least try a public school plan for their child before seeking reimbursement for private school tuition.

"What's wrong with 10 days?" the chief justice said to David B. Salmons, in reference to a suggested minimum time for families to try out an IEP before pulling their children from the public schools. "It's a big expense you are asking the school district to incur, that will take away funds from other programs. And all they are saying is, give it a try for 10 days, and if it doesn't work out, then you can go."

Salmons said that may not work because IEPs are often developed in the spring for the next school year, and parents need to decide by summer where to place their children.

The issue in Forest Grove School District v. T.A. (Case No. 08-305) is is whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district. (My blog preview is here.)

The justice believed to be holding the cards in the case was hard to read. Justice Anthony M. Kennedy had recused himself in a case raising the same issue two years ago, and the participating justices deadlocked 4-4, which upheld a lower court's ruling without setting a precedent.

At one point, Justice Kennedy pressed the district's lawyer, Gary S. Feinerman, on his argument that the federal Individuals with Disabilities Education Act requires children to have received special education services from a public school system before they could be eligible for private school tuition reimbursement.

"The problem with your position is that it seems in a way formalistic and in some cases to encourage intransigence," Kennedy said.

Later, Justice Kennedy suggested he was looking for a middle ground in which parents could win reimbursement when their children had not received public school services, but only if they met a higher burden of proof.

"Suppose we thought it were sensible to add ... the further rule that the school district is presumed to have made the correct diagnosis and, if there is a plan in that kind of case, that the plan was adequate, and that the parent would have to show by clear and convincing evidence that this is not so, rather than just inventing it and pulling it out of the sky," Kennedy said in a dialogue with Eric D. Miller, an assistant to the U.S. solicitor general who was arguing as a friend-of-the-court on the parents' side.

Miller said that might be difficult to reconcile with the IDEA's language calling for an easier "preponderance of the evidence" standard.

"But ... it would be within this court's discretion, I think, to prescribe principles to guide the exercise of the district courts' equitable discretion," the U.S. lawyer said.

Justice Ruth Bader Ginsburg joined Justice Souter in aggressively questioning the school district's lawyer, while Justice Antonin Scalia was sympathetic, along with Chief Justice Roberts, to the district.

"Of course, the parents here didn't run off to a private school only after
the school district had found that their child didn't require any special education, did they?" Scalia said to Feinerman, the district's lawyer. "They put him in a private school without even consulting the schools. ... Saying, by the way, we can get some money. How much much money are you talking about imposing on the school district here?"

"Well, it's -- the tuition is $5,200 a month," the district's lawyer said.

"A month?" Justice Scalia said, somewhat in mock surprise, since the figures were provided in the briefs.

Later, Scalia pressed the Obama administration's lawyer about cases where the parents had never even enrolled their children in public school, yet sought reimbursement for private school tuition. Those facts were much closer to the case on which the court deadlocked in 2007, New York City Board of Education v. Tom F.

Miller said there would be no "categorical bar" to reimbursement in that situation, but "a district court confronted with those facts would most likely conclude that the parents had not genuinely sought a free appropriate public education and hadn't appropriately cooperated with the school district."

Justice Kennedy asked Miller about a hypothetical situation in which parents pull their child from the public schools, and then have a choice of appropriate private schools, one charging $5,200 a month, and the other charging "considerably less."

"Is the hearing examiner entitled to reimburse only for the lower amount, or is the parent entitled to send the child to the more expensive school?" Kennedy said.

Miller assured him that under the court's special education cases, hearing officers and courts may examine the reasonableness of the expense and can deny all or part of it.

A decision in the case in expected by late June. (The oral argument transcript is here.)


I attended the Forest Grove oral argument yesterday and have read the briefs. As a practical matter, I hope the Justices are aware that there are many situations, like T.A.'s where districts fail to fulfill their "Child Find" obligations on a timely basis, if at all. I believe there may be many reasons for this: Districts sometimes take a wait and see attitude when parents come to discuss problems of young children (especially if the parents have not spent the thousands of dollars needed to get a private evaluation) - District staff may suggest in response to parents expressed concerns about "Johnny's" reading readiness/reading, for example, "it might be developmental or he seems to be coming along- let's watch him"; Districts may suggest that rather than an evaluation under special ed, parents accept "building" level or "response to intervention" (RTI) services that might go on for a year or more with eclectic approaches and varied staff before a special education evaluation is even discussed -many parents do not know their rights regarding seeking an evaluation. When evaluations are done - the process takes a couple of months, districts may still "suggest" continued building level services and many parents do not know they can seek even an IEP. If an IEP is suggested, some districts are reluctant to list disabilities specifically (such as dyslexia) and often seem to view ADHD, ASD or ED as not something districts can diagnose -"these are medical conditions" parents are told (but parents may not be told they may ask that a doctor make a diagnosis). The services provided in some public schools are not really tailored or structured to remediate certain deficiencies, but this it is often not acknowledged and there is less discussion of programs and private schools that can help child overcome deficits and thrive as learners.

Parents of young children cannot wait years to see if their child will learn to read - reseach shows it is critical to learn by age 8! Still there are parents who are so frustrated with their child's lack of progress, they are turning to private schools - they are actually upset to have to leave the neighborhood school just to get their children the educational help they need. So, I know there may be different ways to read the tuition reimbursement language in the IDEA (of course I agree with T.A.'s side), but I think that the argument about cost to the district should be thought of a bit differently. If districts timely fulfilled their "child find"
obligations and provided adequate specially designed instruction and related services as appropriate for students with disabilities, the costs would come way down as very few parents "want" to go to private schools for this and, moreover, they would not have that option at district expense. The overall cost to society of so many kids remaining in public school but not actually being taught adequately would be vastly reduced.

We need more "true" research based instruction with robust progress monitoring and assessments and a much more scaffolded approach to teaching and dealing with learning disabilities, such as dyslexia and various other issues, like ADHD, that affect learning. Assuming they even know their rights and are willing to pursue due process and litigation - which is unusual - most parents cannot do what T.A.'s parents did and take the financial risk of going to private school and then seeking tuition reimbursement. Without the leverage (and thus district attention) brought by the ability to obtain private school tuition reimbursement where there has been no IEP due to a district's failure to fulfill child find duties or where there is an inadequate IEP, I am concerned that districts will not make this a priority and many more children and parents will suffer - as will our society. I sincerely hope the IDEA, with the Supreme Court's opinion, will be implemented as was intended to help children get FAPE.

"What's wrong with 10 days?" Roberts asked. I think I can come up with about 100 reasons. Nobody asked "what's the purpose of 10 days" in this hearing. Can anyone come up with any?

Alito asked that quetion in Tom F. and the answer was something like it shows the parents are cooperative. Really? If a parent pulls her kid out after 10 days, you think a reasonable judge would rule that she is cooperative?

The questions/statements by the justices truly reflects, um how do you say, no insight into the realities of special ed and the process of *proving* inadequacy. My favorite is the 10-day Trial offered up. Seriously, do the justices have any idea how difficult it is for parents -- or schools -- to prove anything in 10 days time? Very funny. You can't even get the CSE together in 10 days! Do they realize how vehemently school districts (with lawyers and $$)'hold-on' to the students before they even listen to parents re: outside placement?

I'm not hopeful for the justices supporting parents.

Giving the school district a chance to provide a FAPE in itslef not a bad idea.

The part that amazes me is if you were to poll parents who have had major issues with their school district's Special Education program, the stories are all the same.

In the event that the State Department of Education and the Office of Civil Rights has investigated and found a denial of FAPE with common practices across the same school district with different students. It is irresponsible to continue to ask families coming into the district to "try" the program first.

Our school district is currently funding a private placement for my child. We did not go due process and we did not file a suit.

We did "give them a chance" to provide an education in the school setting. A placement called Home-based but in a school setting was created. This was located in what was formerly a storage closet, locked from the outside and the teacher had the key. My child had 0% chance of social interaction. Restroom breaks were awarded if school work was done. A long term goal was for my child to work up to eating lunch with peers, "If he obtained other short term goals".

My Child is thriving in the private setting and has grades that average out to be 98+ in college prep courses.

Even the public school should consider using common sense sometimes.

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