Supreme Court to Hear New Case on Old Issue

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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

Documents in Forest Grove Sch. Dist. v. T.A.

On Petition for a Writ of Certiorari – Respondent’s Brief in Opposition

Supreme Court Docket for 08-305

  1. I attended the Forest Grove oral argument yesterday and have read the briefs. I think there are many situations, like T.A.’s where districts fail to fulfill their “Child Find” obligations on a timely basis, if at all. Districts often take a wait and see attitude when parents come to discuss problems of young children (especially if they have not gotten a private evaluation) or suggest that rather than an evaluation under special ed, parents accept “building” level or “response to intervention” (RTI) services. Without the leverage of private school tuition, I am concerned districts may not fulfill child find duties and craft IEPs to adequately address children’s needs. In the long run the cost to schools and society will be lower if TA wins – we need more “true” research based instruction, more robust assessments.

  2. We recently prevailed in an administrative law division decision. Our son was in a private school setting that no longer met his needs. We enrolled him in the public school and had private assessments completed which were accepted by the district. The placement they provided him was so contrary to the results of the assessments that we placed him in a private setting and sued for tuition reimbursement. The judge ruled that the proposed public school placement was inappropriate and that we were entitled to re-imbursement. The only problem-it set us back about 70K and the district is stalling on payment. See the case in NJ Administrative Law: JD & CD o/b/o CD v Cherry Hill Board of Education. Districts argue their right to fail before out of district placements- by that time it’s the child who feels like a failure and the damage is done.

  3. I am helping a family whose adopted child spent the last 4 years in series of local residential placements because her mental health issues did not allow her to live safely at home. At no time did the school district identify her as a child with a disability.
    A year ago, the child’s medical/mental health professionals recommended the child be placed in an out of state residential facility. The placement is partially funded by the county and medicaid.
    The local school district began the IEP process after the placement. The placement decision was that a separate school was adequate. The district said it was not required to consider there was no place for the child to live locally or that a 24 hour therapeutic enviroment was needed for her to achieve the IEP goals.

    The family is seeking reimbursement from the district


  4. There was a case last year in Chicago Public schools. I was involved in the case. The child was made eligible for sp ed services but never attended a Chicago public school to receive them.The parents enrolled the child in a private school, claiming the child had a different disability than the one CPS made her eligible for, then filed due process. The parents won an award of tuition reimbursement and transportation costs.

  5. My granddaughter was recently diagnosed as dyslexic. We have only just had a 504 meeting. While the principal of the school appears to be supportive of instituting the accomodations, the classroom teacher is certainly not, and has made it crystal clear that she sees them as a monumental inconveninence to her (the teacher). How long do we have to put my granddaughter through this charade before we could make a change to a tuition based environment where she can get the support and education she has a right to?

  6. My 11 yr. old son has Autism. He would benefit GREATLY from a program that is run in a local private, religious school. We live in CA. How do I “prove” that this is the best learning environment for him (do I even have to?) and how do I go about getting reimbursed by the district for his tuition expenses? Thank you!

  7. My daughter has been receiving IEP services under Speech and Language impairment and ADHD since the first grade. As she slipped further behind her peers each year, I have fought for her to get increased time in S&L and Resource. Now a sixth grader, my daughter is currently is receiving all that the school district has to offer. However, she continues to fall behind, and this is affecting her social life as well.
    One summer I paid privately for 10 weeks of Lindamood Bell and her scores increased two grade levels, so I know she can learn if given the right support. At what point do I have the right to ask the district to pay for private tuition? There is an excellent private school in our community that has a great track record working with students like my daughter.

  8. My grandson has been in a special needs preschool for 2 years in the local public school. He is on the Autism Spectrum and is dyspraxic. We are looking into private education for him but have been told he is not eligible for the tuition voucher until he has attended Kindergarten in public school.
    Shouldn’t 2 years in a public pre school count? Do you know of any law that would help us with this situation? We are in Georgia.

  9. Breaking News! Supreme Court Rules that Parents can Sue School Officials under Discrimination Laws

    A kindergarten girl was allegedly sexually harassed by a third-grade boy on the school bus. Her parents brought this to the attention of school administrators who did little to protect the child. The parents claimed that school officials did not make adequate efforts to protect their child from the bully. His misbehavior continued.

    On January 21, the Supreme Court issued a unanimous decision (9-0) in Fitzgerald v. Barnstable Sch. Committee No. (07–1125). The Court reinstated a lawsuit filed by the girl’s parents under Title IX, which bars gender discrimination at schools that receive federal funds, and under Section 1983, a broader civil rights law.

    To learn about the surprising decision, read Supreme Court Issues Unanimous Decision in Fitzgerald v. Barnstable.

    You can read the decision in Fitzgerald v. Barnstable, 555 U. S. ____ (2009) here.

  10. I don’t think Justice Kennedy will recuse himself in this case. He doesn’t have a history of “backing out of special ed cases.” The two earlier cases were from New York. There was speculation that he recused because of a potential conflict of interest – he has children and grandchildren who live in NY and might be affected by the ruling.

    Supreme Court Justices are not required to disclose reasons why they recuse.

    For those who are interested in this case and possible reasons for Justice Kennedy’s recusal, read Supreme Court Agrees to Decide Issue That Caused Kennedy Recusal on the Blog of Legal Times at

  11. Is Justice Kennedy going to recuse himself again? Why does he continue to back out of special education cases?
    “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.”
    According to this, T.A. was at least eligible for protection under 504 due to his severe depression and ADHD, and at most, entitled to an IEP for counseling and academic support due to the fact that his academics were suffering due to his medical issues.
    If the court finds for the district, then they have supported the districts negligence for Child Find. IMHO.

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