Supreme Court Hears Oral Argument in
Board of Education of City of New York v. Tom F.
by
Wayne Steedman, Esq.

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On Monday, October 1, 2007, the Supreme Court heard oral argument in Board of Education of City of New York v. Tom F. The temperature was in the ‘70’s and it was a great day to drive from Baltimore to Washington to hear Oral Argument in another special education case, the fourth in two years.

The question before the Court was whether parents of a child who has never received special education and related services from the public school district can obtain reimbursement for a unilateral private placement. For parents to be eligible to obtain reimbursement for a private placement, they must prove that the school district did not offer their child a free appropriate public education (FAPE). They must also prove that the private program they selected provided their child with an appropriate education.

The school district argued that the 1997 Amendments to the IDEA also require the child to have “previously received special education and related services under the authority of a public agency.” §1412(a)(10)(C)(ii). The parents, who were supported by the U.S. Justice Department, argued that nothing in the IDEA forces a child to attend an inappropriate program before he can attend an appropriate program in a private school.

Background

Tom F. is the father of Gilbert F., a student with a learning disability. During the 1997-98 and 1998-99 school years, Gilbert attended the Stephen Gaynor School, a private school that specializes in educating children with learning disabilities.

The Board of Education paid Gilbert’s tuition pursuant to a settlement agreement. The Board refused to pay Gilbert’s tuition at Gaynor for the 1999-2000 school year. Instead, they offered to place him in a public school.

Gilbert’s parents challenged the Board’s decision in an administrative hearing and won. The hearing officer determined that the Board’s program would not have provided Gilbert with a free appropriate public education (FAPE) and that Gaynor was able to provide an appropriate program. The Board appealed the decision to a State Review Officer (SRO) who upheld the hearing officer’s decision. Next, the Board appealed to the federal district court.

The federal court held that because Gilbert had never received special education from a public agency, there was no authority under the IDEA to reimburse the parents for the Gaynor tuition. The parents appealed the district court’s decision to the U.S. Court of Appeals for the Second Circuit. While Gilbert’s appeal was pending, the Second Circuit issued a decision in Frank G. v. Board of Educ., 459 F.3d 356 (2d Cir. 2006). The issues in Frank G. paralleled those in Gilbert’s case.

The Second Circuit ruled that the IDEA does not require a child to receive special education from a public school district before the child can receive tuition reimbursement for a private placement. The Second Circuit remanded Gilbert’s case back to the district court with an order to enter a finding consistent with its holding in Frank G.

The Board of Education then appealed to the U. S. Supreme Court.

The School District’s Argument

As the petitioner, the Board argued its case first. Leonard Koerner represented the Board.

Mr. Koerner began by distinguishing the 1997 Amendments to the IDEA from the Court’s decisions in Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985) and Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). He stated that the 1997 Amendments clarified under what conditions the parents of a child who is unilaterally placed in a private school would be entitled to tuition reimbursement from the public agency.

Prior to 1997, the IDEA did not address unilateral private school placements. Thus, the Court’s earlier rulings in Burlington and Carter relied on much broader statutory language. Mr. Koerner argued that the 1997 Amendments, specifically §1412(a)(10)(C)(ii), included a requirement that a child had to previously receive special education from the public agency in order for a parent to seek tuition reimbursement.

Justice Alito inquired how long a student would have to receive special education services from the public agency before the parents could unilaterally place him in a private school.

Mr. Koerner acknowledged that the statute does not specify any length of time and that a few days would meet the requirements of the statute.

Justice Alito responded, “Why would Congress ever have wanted a scheme like that? It makes no sense whatsoever.” Mr. Koerner argued that the IDEA requires parents to cooperate with the school district and removing a child after just a few days would be evidence of the parents’ lack of cooperation.

Justice Scalia hypothesized that the purpose of §1412(a)(10)(C)(ii) was to prevent rich parents, who had no interest in sending their child to a public school, from getting public funding for their private school.

Justice Ginsberg commented on the “heavy burden” on parents to prove that the public agency had not offered a FAPE before they could obtain tuition reimbursement.

Justice Roberts noted that if the child had never attended a public program, this would create an even heavier burden on the parents to prove the school district could not have provided FAPE if the child had attended the public program.

Mr. Koerner would not concede that point. He argued that in a due process hearing the parents would have an advantage because they could bring in the private school teachers to testify about the child’s needs, whereas public school personnel would not have the same level of experience with the child. Justice Roberts was not persuaded by this argument.

The Parents’ Argument

Paul Gardephe, counsel for the parents, argued that §1412(a)(10)(C)(ii) applied to children who were currently in the public setting and did not apply to children who were already unilaterally placed in a private school. Thus, the statement in the statute referring to children who previously received special education was inapplicable to the present case.

Mr. Gardephe argued that if Congress had intended to restrict tuition reimbursement to children who had previously received special education, the statute would state reimbursement would be available “only if” the child had previously received special education under the authority of the public agency.

Mr. Gardephe noted that the “only if” language was used in multiple places in the IDEA. Its absence in 1412(a)(10)(C)(ii) shows that Congress had no intention to limit tuition reimbursement to only those children who had previously received special education.

Justices Scalia, Souter and Roberts questioned the validity of this argument. They noted that the plain language of the statute seemed to limit tuition reimbursement to children who had received special education under the authority of the public agency and adding the “only if” would not provide any greater meaning.

Mr. Gardephe addressed Justice Alito’s earlier question about the amount of time a child would have to receive special education services in order to meet the requirements of the statute as defined by the Board. Mr. Gardephe hypothesized that parents could remove their child after one day of special education services and still rely on that five years later to seek tuition reimbursement in a unilateral placement. He argued that: “It doesn’t serve any useful purpose and if it doesn’t serve any useful purpose there is no reason to believe that Congress intended it to have that effect.”

Justice Roberts countered that the requirement for parents to provide ten days written notice prior to removing their child from the public school would allow a school district an opportunity to see if the IEP developed by the school “is going to work or not going to work” even if for only ten days. Mr. Gardephe responded that Burlington specifically stated that the statue does not require a child to remain in an inappropriate placement.

Justice Roberts noted that the statute was amended after Burlington and therefore, Burlington does not provide a compelling guide.

The Justice Department’s Argument

Gregory Garre argued on behalf of the Justice Department that sided with the parents. He stated that the School Board argued that a school may both refuse to provide an appropriate public placement to a child with a disability and refuse to pay for an appropriate private placement.

Justice Scalia immediately challenged Mr. Garre, asserting that the Board never said that. Mr. Garre stood his ground and cited Burlington for the proposition that parents are not required to subject their child to an inappropriate placement in order preserve their right to seek tuition reimbursement.

Justice Scalia immediately interrupted stating that Burlington was decided under a different statute. Mr. Garre agreed, but noted that Burlington interpreted the fundamental requirement of the statute that all children with disabilities receive a FAPE. He went on to state that, in Burlington, a unanimous Court agreed that “forcing a parent to choose between subjecting his child to an inadequate public placement or paying for a private placement deprives the parent of his right to a free appropriate public education.”

Mr. Garre argued further that the Board’s interpretation of the statute creates an absurd rule. It does not require parents to “try out” the program proposed by the school district if the child previously received special education. It only requires that at some time in the child’s education, he received special education even if that had been years prior. Thus, Justice Roberts was incorrect in assuming that the purpose of requiring a child to have received special education previously when combined with the statute’s ten day notice requirement was to force a child to attend the proposed public placement.

Analysis

The Justices seemed split on this case. Several Justices said little or nothing which makes it difficult to guess how they will rule. Justice Kennedy recused himself.

With eight Justices, it is possible that there may be a 4-4 tie. This would place the legal posture of the case where it was with the Second Circuit, i.e., as a victory for the parents.

One confusing aspect of this case relates to the dynamics of what happens with an initial IEP. This issue was not addressed in the Oral Argument.

The IDEA requires parental consent before a school district implements an initial IEP. If the parent rejects that initial IEP, is the school district under an obligation to provide any services to the child? Is the school district required to modify the IEP or should both sides stand firm? Would parents be required to place their child into a public placement with which they disagree in order to preserve any right to tuition reimbursement?

At one point, even Justice Scalia had to concede that the Board’s interpretation of §1412(a)(10)(C)(ii) could result in “compelling the parent nonetheless to put the kid in a program that anybody would see will not meet the [child’s] needs.” This is the very scenario that a unanimous Court found to be inconsistent with the purpose of the law in Burlington.

In the recent Winkelman decision, the Court focused on parental rights and addressed, in passing, the concept of an “appropriate” education, which was originally defined in 1982 by Rowley.

When the Court issues their decision in in Tom F., will we see a further refinement of “appropriate”, i.e., a re-visiting of Rowley?

Will we see further refinements in the requirements for parents to receive “tuition reimbursement” for private school placements, i.e., the 1985 Burlington decision, or Pete’s case, the 1993 opinion in Florence County v. Carter?

Tomorrow, in secret session, the Court will vote. After the vote, the Chief Justice will assign responsibility for drafting the majority opinion and the dissent(s), if any. Then the drafts will be distributed among the Justices for further review, comments and revisions.

If the Justices are split and experience confusion and concern about future implications, they may revisit their earlier positions and perhaps even shift from one side to the other. Shifting opinions will delay the date the Opinion is issued. If all of the Justices are in agreement with each other, the decision may be issued quickly.

Wayne D. Steedman, Esq.
Attorney at Law
The Steedman Law Group, LLC
Galleria Towers
1447 York Road, Unit 508
Lutherville-Timonium, MD 21093
(410)-645-0625
Email: wayne | at | steedmanlaw.net
Web: http://www.steedmanlaw.net

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