School District of the City of New York v. Tom F. (Special Education Law)

[The Court decided this case by a per curiam opinion on Oct. 10. A per curiam opinion is where no individual Justice takes authorship. Here, there was only an order given to the Court below, affirming its order on behalf of Tom F. The Supreme Court was equally divided in this case, 4-4 (Justice Kennedy recused himself). The legal implications of a divided, unwritten, per curiam decision are that the decision from the lower court stands, but the Supreme Court decision to affirm the lower court has no precedential value for later decisions elsewhere. Thus, Tom F's situation is taken care of, and his parents get reimbursement for private school tuition from the public schools, but we don't have any definitive and general guidance on the questions provided in this case. Another case, with another Court, will have to bring the guidance.]

This case deals, or should have dealt, with an important issue in Special Education law occasioned by 1997 Congressional Amendments to that law. In those Amendments there is a specific provision (get ready for a mouthful....) which states that: (1) if parents of a child with a disability, who previously received services under the authority of a public agency (i.e., a public school), enroll the child in a private elementary or secondary school without the consent of or referral by the school, then (2) a hearing officer or court may require the public agency to reimburse the parents for the cost of enrollment in the private school. But this is happens only if (3) the court/hearing officer finds that the public school had not made a free appropriate public education (FAPE) available to the child before enrollment in the private placement. This appears in 20 USC sec. 1412(a)(10)(C)(ii).

This was the provision of law most debated in the underlying case of Tom F. But, Tom F's situation didn't fit the law precisely. Rather than being a child who had previously been enrolled in a public school, Tom was first enrolled in a private school. Then, later on, when the public school authorities tried to provide an Individual Education Plan (IEP) for Tom that would place him in a public school, the parents objected. They kept him in his private school placement. The question of law was whether the language of the statute above would have precluded the parents from being reimbursed. It is a rather close call. The language of the law itself only purports to deal with the situation of parents who already tried the public schools and found them wanting. Does that mean, however, that those who hadn't yet tried the public schools would be forced to go that route before the benefits of reimbursement were possible? One can rather easily extend the language of 1412(a)(10)(C)(ii) to suggest that parents must first try the public schools before deciding that things "don't work." And, even under that scenario, the statute doesn't guarantee that the school district will pay for a private placement. Indeed, it just gives parents the authority to bring their case for reimbursement in an appropriate judicial forum. The Second Circuit decided that the law didn't require Tom F.'s parents to try the public school route first before applying for reimbursement for Tom's private school tuition. But their interpretation of the law will not even be definitive or precedential in the Second Circuit, since their decision was simply an "order" and not a reasoned "opinion."**

[**For those of you who really like technical trivia, Second Circuit Local Rule 0.23(b) states, "Rulings by summary order do not have precedential effect."]

A Few Further Comments

If you want to understand the issues of this case in the context of the development of disability law, you need to do three things: (1) familiarize yourself with the Individuals with Disabilities Education Act ("IDEA"), first passed in 1975 as the Education for All Handicapped Children Act (14 USC sec. 1200 et seq.) and then amended in 1990 (when its name was also changed to the IDEA), 1997 and 2004. Whenever a statute is amended you need to acquaint yourself not only with the new or modified statutory language but also with the regulations that are promulgated under the law. Then, (2) you should acquaint yourself especially with the Burlington (471 US 359 (1985)) and Carter (510 US 7 (1993)) cases. Finally (3), you should be aware that there is a "three-part test" (courts love three-part tests in order for litigants to establish rights) arising from these and other cases to evaluate whether a parent is entitled to reimbursement for a private school placement.

A court is to determine: (a) whether the proposed program at a public school is an appropriate placement for the child's needs. If it is appropriate, the child must go to the public school or have parents pay for the education in private schools. Then, (b) if it is inappropriate, the court must inquire whether the private placement is appropriate. Then, (c) even if the reviewing body finds that the placement is appropriate, it is required to balance the equities and determine whether they favor reimbursement. That is, even if the private school placement "works" for Tom F. or whoever, if it is deemed too expensive or too remote (i.e., if parents of a New York child decide to send their child to a school in France...), the decision-maker can still turn down the request. But if it appears that parents are doing all that they can to try to be cooperative with the public school district, a court will probably award them the private placement they desire.

Conclusion

I didn't go into the facts in detail because this decision has no precedential value for the Supreme Court. But the divided Court highlights the controversial nature of special education funding. School districts are hard-pressed to present an adequate "standardized" program for their "neurotypical" students. To be forced to come up with loads of private school tuition reimbursements for individuals with disabilities might take away from that "standard" program. On the other hand, parents of children with disabilities have rights to obtain a "free, appropriate public education" for their children. They are, after all, taxpayers too. This issue will continue to play out, especially in a subject that interests me deeply--educational and treatment funding for children with autism.

The issue remains...

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