Court to Revisit Tuition Reimbursement Issue in Forest Grove School District v. T. A. (08-305)
On January 16, 2009, the Supreme Court added a special education case to their docket for this term. Forest Grove School District v. T. A. is a special education case about tuition reimbursement for a child who was never found eligible and never received special education services from the school district.
The question presented is whether parents who unilaterally enroll their disabled child in a private school are entitled to tuition reimbursement if the child never received special education from the district.
Forest Grove appealed an adverse decision from the Court of Appeals for the Ninth Circuit on behalf of parents who sent their son to a private school for children with behavioral and emotional problems. Two years earlier, the school district determined that although T.A. had ADHD, severe depression, substance abuse problems, and was failing high school classes, he was not eligible for special education services under IDEA nor for protections under Section 504.
There is a split among circuits on this question: “whether 20 U.S.C. § 1412(a)(10)(C) creates a categorical bar to reimbursement of private school tuition for students who have not ‘previously received special education and related services.’”
The First Circuit held that the statute imposes a categorical bar (Greenland School District v. Amy N., 358 F.3d 150, 159-60 (1st Cir. 2004). The Second and Eleventh Circuits held otherwise. (Frank G. v. Bd. of Educ., 459 F.3d 356, 367-76 (2d Cir. 2006), cert. denied, 128 S. Ct. 436 (2007); M.M. ex rel. C.M. v. Sch. Bd., 437 F.3d 1085, 1098-99 (11th Cir. 2006)).
Earlier Cases, No Resolution by Supreme Court
Two cases on this issue came before the Supreme Court in 2007. Neither was resolved.
In Board of Education v. Tom F., Justice Anthony Kennedy suddenly recused himself after briefs were filed, but before oral arguments. After oral argument, the Court issued a 4-4 ruling. The tie upheld tuition reimbursement in that case, but did not establish a nationwide precedent.
A short time later, the high Court denied review in Frank G. v. Bd Educ Hyde Park Central School District after Justice Kennedy recused himself again.
To learn more about the Tom F. case, read A Short History of New York Bd of Ed v. Tom F. at https://www.wrightslaw.com/blogs/07/nyc.tomf.history.htm
Documents in Forest Grove Sch. Dist. v. T.A.