Supreme Court Issues Pro-Child Decision in Forest Grove School District v. T.A.
by Peter Wright, Esq. and Pamela Wright, MA, MSW

On June 22, 2009, the Supreme Court issued a decision in Forest Grove School District v. T.A., a case about tuition reimbursement for a child who was never found eligible and never received special education services from the public school.

The question presented in Forest Grove v. T.A. was 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.

There was 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.’”

School District's Position "Borders on the Irrational"

In a 6-3 decision, the Supreme Court held that:

This dispute "... differs from Burlington and Carter in that it concerns not the adequacy of a proposed IEP but the School District's failure to provide an IEP at all . . . moreover, when a child requires special education services, a school district's failure to propose an IEP of any kind is at least as serious a violation of it's responsibilities under IDEA as a failure to provide an adequate IEP."

"The District's position similarly conflicts with IDEA's 'Child find' requirement . . . [requiring States] .. to identify, locate, and evaluate all children with disabilities' to ensure that they receive needed special education services."

"Indeed, by immunizing a school district's refusal to find a child eligible for special education services no matter how compelling the child's need, the School District's interpretation [of the statute] would produce a rule bordering on the irrational."

This would "leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether."

". . . this case vividly demonstrates the problem of delay, as respondent's parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005 -- almost a year after respondent graduated from high school."

". . . we conclude that IDEA authorizes [tuition] reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school."

The full text of this decision, including a 3 page Syllabus, 17 page Opinion, 2 page Appendix to the Opinion, and 12 page Dissent by Justice Souter (joined by Justices Scalia and Thomas) is posted on Wrightslaw.

Background of the Case

Despite a long history of ADHD, severe depression, substance abuse problems, and failing grades, Forest Grove School District determined that T. A. was not eligible for special education services under IDEA, nor for protections under Section 504.

After a due process hearing, the hearing officer found that T. A.'s ADHD and learning disabilities adversely affected his educational performance, and that the school district failed to provide him with a free appropriate public education. He ordered the district to reimburse the parents for the cost of the private school tuition.

The school district appealed to federal court where the Judge set aside the reimbursement award, based on the belief that IDEA 97 barred reimbursement for students who did not previously receive special education from the public school district.

The Court of Appeals reversed the District Court's decision and remanded the case for further proceedings. The Ninth Circuit held that:

"... a student who never received special education and related services from a school district nevertheless may recover reimbursement for the costs of private school education. We conclude that such a student is not barred as a matter of law from receiving reimbursement. In the IDEA, Congress conferred broad discretion on the courts to provide appropriate equitable relief, including reimbursement for attendance at a private school."

The Ninth Circuit decision is here:
http://www.wrightslaw.com/law/caselaw/08/9th.forest.grove.ta.htm

The Supreme Court agreed to hear the case to resolve a split among Circuits on this issue.

In April, the Obama Administration filed an Amicus Brief on behalf of T.A. and his parents. The Administration argued that private school tuition reimbursement may be awarded to the parents of a child who has not previously received special education when the child was denied a free appropriate public education.

In support of this position, the Administration asserted that:

A. The plain text of IDEA provides for reimbursement of private-school tuition when a school district fails to provide a free appropriate public education.

B. Petitioner’s interpretation produces perverse consequences.

C. The legislative history does not support petitioner’s interpretation.

D. The formal position of the agency charged with implementing IDEA is entitled to deference.

E. The Spending Clause does not require a different result.

You can read the Administration’s Amicus Brief here: http://www.wrightslaw.com/law/pleadings/forestgrove.ta.usa.amicus.pdf

Oral argument before the Supreme Court was held on April 28, 2009. The decision was issued less than two months later.

What happens next?

The case will be remanded back to the U. S. District Court.

In making decisions about reimbursement, the District Court has guidance from this decision. In deciding if the parents will be reimbursed for some or all the costs of T. A.'s special education, the Court is directed to "... consider all relevant factors, including the notice provided by the parents and the school district's opportunities for evaluating the child ... "

Forest Grove School District v. T. A.
Case Information
General Information about the case
Docket Number
08-305
Author: John Paul Stevens
Date Granted: 01/16/2009
Oral Argument: Tue, 04/28/2009
Date Decided: 009
Appealed From
United States Court of Appeals for the Ninth Circuit
Vote
6-3
Opinions/Dissents

Justice John Paul Stevens wrote the majority opinion. Justice David Souter joined by Antonin Scalia and Clarence Thomas dissented.
Attorneys
Attorney information for this case

Attorneys for Petitioner:
Gary Feinerman
Sidley Austin LLP
(312) 853-7000
One South Dearborn Street
Chicago, IL 60603
Party name: Forest Grove School District

Attorneys for Respondent:
Bonnie I. Robin-Vergeer
Public Citizen Litigation Group
(202) 588-1000
Counsel of Record
1600 20th Street, N.W.
Washington, DC 20009
Party name: T. A.

Mary E. Broadhurst
(541) 683-8530
P.O. Box 11377
Eugene, OR 97440
Party name: T. A.

Other:
Maree F. Sneed
Hogan & Hartson LLP
(202) 637-5600
555 Thirteenth Street, N.W.
Washington, DC 20004
Party name: National School Boards Association, et al.
Justices take Oregon special education case (Jan. 16, 2009)
Case Reference:
Forest Grove School District v. T. A.

The Supreme Court has agreed to decide whether federal law requires students with disabilities to first try a public program before they can claim reimbursement for the cost of a private school.

The court heard a case concerning a similar issue in 2007 but Justice Anthony M. Kennedy recused himself for undisclosed reasons, and the other justices tied 4-4 over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win repayment of private school tuition for a child with disabilities who had never enrolled in the city’s school system.

In the case at hand, unidentified Oregon parents decided to withdraw their son from the Forest Grove School District because they felt the student was not receiving adequate education and services.

During his freshman year of high school, the boy was referred for an evaluation to determine whether he had a learning disability that qualified him for services under IDEA. The team of specialists unanimously concluded that student, known in filings as T.A., did not have a learning disability and therefore was ineligible for special education. T.A.’s mother, who attended the meeting, agreed with that determination. No one ever followed up on either the reference to “[p]ossible 504” in the psychologist’s report or the references
to “suspected ADHD” in the School District’s staff meeting notes.

At some point during the next year, T.A. began using marijuana. Eventually, his use became regular, and he exhibited noticeable personality changes. T.A. ran away from home. The police brought him back a few days later. T.A.’s parents took him to a psychologist and, eventually, to a hospital emergency room.

Dr. Fulop, a psychologist hired by T.A.’s parents, met with T.A. a number of times in early 2003. Dr. Fulop held several lengthy sessions immediately after T.A. ran away from home, and he eventually diagnosed T.A. with ADHD, depression, math disorder, and cannabis abuse. Dr. Fulop recommended a residential program.

His parents enrolled him in Mount Bachelor Academy, a residential private school that describes itself as “designed for children who may have academic, behavioral, emotional, or motivational problems.” His parents requested a hearing to require the school district to evaluate T.A. in all areas of suspected disability. A multi-disciplinary team of school officials acknowledged T.A.’s learning difficulties, his diagnosis of ADHD, and his depression, but a majority found that T.A. did not qualify under the IDEA in the areas of learning disability, ADHD, or depression, because those diagnoses did not have a severe effect on T.A.’s educational performance.

An administrative hearing officer ruled that T.A. was disabled and therefore eligible for special education under the IDEA and § 504 of the Rehabilitation Act of 1973; that the school district had failed to offer T.A. a free appropriate public education; that the school district was responsible for the costs of sending T.A. to Mount Bachelor Academy.

The school district appealed to the U.S. District Court for the District of Oregon, arguing that reimbursement was unwarranted because T.A. unilaterally withdrew from public school without providing prior notice to the school district, he never received special education and related services from the school district, and he withdrew for reasons unrelated to his disability (that is, substance abuse and behavioral problems).

The district court reversed the hearing officer’s grant of reimbursement to T.A., but a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit reinstated the hearing officer’s determination.

The school district asked the Supreme Court to hear the case, pointing to a split among the circuits on the issue:

“A divided Ninth Circuit panel expressly adopted the Second Circuit’s view that IDEA permits a tuition reimbursement award under those circumstances. In so doing, the Ninth Circuit flatly ‘reject[ed]’ the First Circuit’s contrary view that the child’s prior receipt of special education services from the public agency is a ‘threshold’ requirement for such reimbursement under IDEA.”

On Jan. 16, the court accepted the case for review. The justices will hear oral arguments in April.

Question presented: Whether parents of a disabled child, who decide on their own to transfer the child to a private school, are entitled to tuition reimbursement from the local public school district if the child had never received any special education assistance previously.
Divided court backs parents of special needs students (June 22, 2009)
Case Reference:
Forest Grove School District v. T. A.

A divided Supreme Court ruled today that parents who decide to remove their disabled children from public school can be reimbursed for a private education.

The court heard a case concerning a similar issue in 2007 but Justice Anthony M. Kennedy recused himself for undisclosed reasons, and the other justices tied 4-4 over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win repayment of private school tuition for a child with disabilities who had never enrolled in the city’s school system.

In the case at hand, unidentified Oregon parents decided to withdraw their son from the Forest Grove School District because they felt the student was not receiving adequate education and services.

During his freshman year of high school, the boy was referred for an evaluation to determine whether he had a learning disability that qualified him for services under IDEA. The team of specialists unanimously concluded that student, known in filings as T.A., did not have a learning disability and therefore was ineligible for special education. T.A.’s mother, who attended the meeting, agreed with that determination. No one ever followed up on either the reference to “[p]ossible 504” in the psychologist’s report or the references
to “suspected ADHD” in the School District’s staff meeting notes.

At some point during the next year, T.A. began using marijuana. Eventually, his use became regular, and he exhibited noticeable personality changes. T.A. ran away from home. The police brought him back a few days later. T.A.’s parents took him to a psychologist and, eventually, to a hospital emergency room.

Dr. Fulop, a psychologist hired by T.A.’s parents, met with T.A. a number of times in early 2003. Dr. Fulop held several lengthy sessions immediately after T.A. ran away from home, and he eventually diagnosed T.A. with ADHD, depression, math disorder, and cannabis abuse. Dr. Fulop recommended a residential program.

His parents enrolled him in Mount Bachelor Academy, a residential private school that describes itself as “designed for children who may have academic, behavioral, emotional, or motivational problems.” His parents requested a hearing to require the school district to evaluate T.A. in all areas of suspected disability. A multi-disciplinary team of school officials acknowledged T.A.’s learning difficulties, his diagnosis of ADHD, and his depression, but a majority found that T.A. did not qualify under the IDEA in the areas of learning disability, ADHD, or depression, because those diagnoses did not have a severe effect on T.A.’s educational performance.

An administrative hearing officer ruled that T.A. was disabled and therefore eligible for special education under the IDEA and § 504 of the Rehabilitation Act of 1973; that the school district had failed to offer T.A. a free appropriate public education; that the school district was responsible for the costs of sending T.A. to Mount Bachelor Academy.

The school district appealed to the U.S. District Court for the District of Oregon, arguing that reimbursement was unwarranted because T.A. unilaterally withdrew from public school without providing prior notice to the school district, he never received special education and related services from the school district, and he withdrew for reasons unrelated to his disability (that is, substance abuse and behavioral problems).

The district court reversed the hearing officer’s grant of reimbursement to T.A., but a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit reinstated the hearing officer’s determination.

The school district asked the Supreme Court to hear the case, pointing to a split among the circuits on the issue:

“A divided Ninth Circuit panel expressly adopted the Second Circuit’s view that IDEA permits a tuition reimbursement award under those circumstances. In so doing, the Ninth Circuit flatly ‘reject[ed]’ the First Circuit’s contrary view that the child’s prior receipt of special education services from the public agency is a ‘threshold’ requirement for such reimbursement under IDEA.”

On June 22, 2009, the Supreme Court affirmed the lower court order with Justice John Paul Stevens writing for the 6-3 majority.

"We conclude that the Individuals with Disabilities Education Act authorizes reimbursement for the cost of private special education services when a school district fails to provide a free, appropriate public education . . . regardless of whether the child previously received special education or related services through the public school," Stevens wrote.

Justice David Souter, Antonin Scalia and Clarence Thomas dissented.

"Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools," Souter wrote.

Question presented: Whether parents of a disabled child, who decide on their own to transfer the child to a private school, are entitled to tuition reimbursement from the local public school district if the child had never received any special education assistance previously.

June 23, 2009
Court Affirms Reimbursement for Special Education
By TAMAR LEWIN, NY TIMES

In a decision that could help disabled students obtain needed services and cost school districts millions of dollars, the Supreme Court ruled on Monday that parents of special-education students may seek government reimbursement for private school tuition, even if they have never received special-education services in public school.

The case before the court involved a struggling Oregon high school student, identified in court documents only as T. A., whose parents removed him from public school in the Forest Grove district in his junior year and enrolled him in a $5,200-a-month residential school.

Although Forest Grove officials had noticed T. A.’s difficulties and evaluated him for learning disabilities, he was found ineligible for special-education services. Only after he enrolled in the private school did doctors say T. A. had attention deficit hyperactivity disorder and other disabilities.

While most of the nation’s six million special-education students attend public school, as T. A. did for many years, thousands of families with disabled children, convinced that the public schools lack appropriate placements, avoid the public schools altogether. Instead, they enroll their children in expensive private schools for students with emotional or learning disabilities, and then seek reimbursement.

Nationally, about 90,000 special-education students are in private schools, most of them referred by their public schools.

In 2007-8, the New York City schools, which filed a friend-of-court brief supporting Forest Grove, paid $89 million in private-school tuition for disabled students whose parents had placed them there, up from $53 million two years earlier. In 2007-8, the city received 4,368 requests for reimbursement from parents who enrolled their children in private school; of those, more than half had not received services in public school.

The issue in the Forest Grove case was whether a 1997 amendment to the Individuals with Disabilities Education Act (or IDEA) prohibited private-school tuition reimbursement for students who never received special-education services in public school.

The amendment says tuition may be available for students with disabilities “who previously received special-education” services in public school, if the school did not make a free and appropriate public education (or FAPE) available in a timely manner.

Forest Grove, backed by school-boards associations across the country, argued that the amendment precluded reimbursement for those, like T. A., who never received special-education services in public school.

But the high court, in a 6-to-3 ruling, rejected that argument.

“We conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private school placement is appropriate, regardless of whether the child previously received special education or related services through the public school,” Justice John Paul Stevens wrote in the majority opinion.

Justice Stevens said the school district’s interpretation would produce a result “bordering on the irrational.”

“It would be strange for the act to provide a remedy, as all agree it does, where a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether,” he wrote.

He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr.

In his dissent, Justice David H. Souter, joined by Justices Antonin Scalia and Clarence Thomas, said that the disabilities law was designed to promote cooperation between school districts and families in developing an individualized education plan for each disabled student. The dissent also discussed the high costs of private-school placements.

“Special education can be immensely expensive, amounting to tens of billions of dollars annually and as much as 20 percent of public schools’ general operating budgets,” Justice Souter wrote. “Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools.”

The Supreme Court considered the issue of tuition reimbursement in a New York case two years ago, but split 4 to 4, with Justice Kennedy not taking part.