Forest Grove School District v. T.A.
ELA member responses to the Supreme Court decision
June 2009

In a 6-3 decision, the U.S. Supreme Court in Forest Grove School District v. T.A. (Forest Grove) this past week affirmed a Ninth Circuit ruling that school boards may be required to reimburse parents of special education students who have been unilaterally placed in private schools even if they have not previously received special education from the public school district. 

• An Administrator's Perspective
  
• An Attorney's Perspective
  
• A Professor's Perspective

An Administrator's Perspective
Allan G. Osborne, Jr., Ed.D. 
Retired Principal
Snug Harbor Community School
Quincy, Massachusetts 

In a 6-3 decision the U.S. Supreme Court in Forest Grove School District v. T.A. (Forest Grove)(1) this past week affirmed a Ninth Circuit ruling that school boards may be required to reimburse parents of special education students who have been unilaterally placed in private schools even if they have not previously received special education from the public school district.  The decision ends a split among the federal appellate circuits.  At the heart of the issue in the case is the meaning of a clause in the Individuals with Disabilities Education Act (IDEA)(2) that reads:

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.(3) (Emphasis added)

The student involved in Forest Grove experienced difficulty paying attention and completing his school work, but with help at home passed from grade to grade, and attended the public schools through the 11th grade.  At that time his parents withdrew him and enrolled him in a private residential school, partly in response to his use of marijuana and personality changes.  While in the public schools the student, identified in court documents as T.A., had been evaluated for special education once but was determined to be ineligible for services even though it was noted that he might have Attention Deficit Hyperactivity Disorder (ADHD).  Even so, he never received any special education services while in the public schools and an individualized education program (IEP) was never developed for him.

Prior to enrolling T.A. in the private school his parents took him to an independent psychologist who diagnosed him with ADHD, depression, a math disorder and cannabis abuse. The psychologist recommended placement in a residential program because of T.A.’s problems in school and at home. Shortly after enrolling T.A. in the private school his parents requested an administrative due process hearing and requested another special education evaluation from the public school district.  At the completion of that evaluation school officials again determined that T.A. was not eligible for services or accommodations under either the IDEA or Section 504 of the Rehabilitation Act.(4)  After considering all evidence the hearing officer found that T.A. had disabilities and was eligible for special education.  The hearing officer further determined that the school district had failed to offer the student a free appropriate public education (FAPE) by failing to identify T.A. as a student with disabilities and was therefore responsible for the costs of his private school placement.  In an unpublished opinion the federal district court in Oregon accepted the hearing officer’s findings of fact but summarily decided that the parents were statutorily ineligible for reimbursement under the IDEA.

The Ninth Circuit reversed and remanded the trial court’s decision.(5)  The court agreed with and adopted the reasoning and analysis of the Second Circuit’s prior decision in Frank G. v. Board of Education.(6)  The Ninth Circuit commented that the express purpose of the IDEA is to ensure that all students with disabilities have a FAPE available to them.  Interpreting the IDEA as categorically prohibiting reimbursement to students who have not yet received special education and related services runs contrary to this express purpose in the court’s view.  Further, the court was convinced that it would also lead to the absurd result that the parents must wait until the child has received special education from a public school before sending the child to an appropriate private school, regardless of how uncooperative school personnel and how inappropriate the special education services are.  Thus the Ninth Circuit held that a student who has not previously received special education and related services was eligible for reimbursement.

In a decision that created strange bedfellows (with Stevens, Roberts, Kennedy, Ginsburg, Breyer and Alito in the majority and Souter, Scalia, and Thomas in the minority) the Supreme Court affirmed the Ninth Circuit’s decision.  Writing for the majority, Justice Stevens remarked that when a child requires special education services a school district’s failure to propose an IEP is at least as serious a violation of the IDEA as a failure to provide an appropriate IEP.  Stevens further noted that § 1412(a)(10)(C)(i) of the IDEA, which provides that a parent is not entitled to reimbursement when the school board offered a FAPE, creates a safe harbor that explicitly bars reimbursement only when a school district makes a FAPE available but says nothing about the availability of reimbursement when a school district fails to provide a FAPE.  Its statement that reimbursement is not authorized when a school district provides a FAPE, Stevens offered, could be read to indicate that reimbursement is authorized when a school district does not fulfill that obligation.  Further, Stevens contended that § 1412(a)(10)(C)(ii) is phrased permissively providing only that courts may require reimbursement in certain enumerated circumstances but does not foreclose reimbursement awards in other situations.  In conjunction with other clauses in the same section the majority maintained that this clause is best read as elaborating on the general rule that courts may order reimbursement when a school district fails to provide a FAPE by listing factors that may affect a reimbursement award in the situation where a school district has provided some special education services and the child’s parents believe those services are inadequate. 

Indicating that the IDEA’s reimbursement clauses are best read as elucidative rather than exhaustive, Stevens added that denying reimbursement in this case would also be at odds with the general remedial purpose of the IDEA and its amendments in that it would conflict with the statute’s child find requirements.  In the majority’s view it would be particularly odd of the IDEA to provide a remedy when a school district offers a student inadequate special education but leaves parents without relief in the more egregious situation in which the district unreasonably denies a student access to such services altogether. 

In briefs before the court the school district had argued that the IDEA’s reimbursement provisions were ambiguous and that the U.S. Constitution’s Spending Clause would require that the ambiguity be resolved in its favor inasmuch as an ambiguous statute cannot provide the clear notice required by the Spending Clause. The high Court dismissed the school district’s Spending Clause argument, concluding that by accepting IDEA funds states expressly agreed to provide a FAPE to all students with disabilities.  Referring to its previous IDEA reimbursement decision in Burlington School Committee v. Department of Education, Commonwealth of Massachusetts,(7) the Court noted that a reimbursement award merely requires a school district that has failed in its obligation to belatedly pay the expenses it should have paid all along.  Further, the majority’s opinion notes that states have been on notice that the IDEA authorizes reimbursement at least since that decision was issued.   Inasmuch as parents are entitled to reimbursement only if a court concludes that the public placement was inappropriate and that the private placement was appropriate and that courts retain their discretion to reduce a reimbursement award if warranted by the equities, the majority also dismissed the school board’s argument that allowing reimbursement in situations such as that presented in Forest Grove will impose a substantial financial burden on school districts.

Justice Souter, in what may very well be his last written opinion in an education case, dissented.  Souter wrote that the IDEA’s provisions are ambiguous in their silence about situations where no previous special education services or FAPE were available.  In his opinion when permissive language covers a special case, the natural sense of it should be taken to prohibit that which it fails to authorize.  Souter asserted that clause (i) of the IDEA’s reimbursement section may be read to assume that school authorities can be expected to honor their obligations and that unilateral placements cannot be reimbursed and that clause (ii) can be read to impose a receipt of prior services limit on any exceptions to that general rule when school officials fall short of providing a FAPE. 

Comments
Given the factual circumstances in Forest Grove the Court’s decision is not surprising.  The student involved in the case had been evaluated once while in the public schools and once shortly after his transfer to a private school.  Even though school personnel twice determined that he was not eligible for special education, a hearing officer and a federal trial court disagreed.  Under these circumstances it would seem incongruous for his parents to not receive at least partial reimbursement for their unilateral private school placement.  School districts have two major charges under the IDEA.  The first is to identify all students with disabilities (child find) and the second is to develop appropriate IEPs for those who require special education and related services.  It makes little sense that Congress would have intended reimbursement to be an available remedy when school personnel failed to meet their obligations under the second duty but not the first, especially since proper identification is a prerequisite to providing a FAPE.

The Supreme Court has not said that T.A.’s parents are entitled to reimbursement.  That will be decided by the federal district court on remand and through whatever appeals may follow.  Rather, the Court has said that reimbursement is available as a remedy when a school district fails to provide a FAPE even if the student has not previously received special education and related services under the auspices of the public schools.  The Court has essentially said that in spite of arguably ambiguous language in the statute itself, Congress could not have intended to allow reimbursement in a situation where a school district’s proposed IEP is found to be deficient but not in a situation where school personnel failed to even identify the student as having disabilities and thus failed to offer an IEP in the first place.  In each case the student is denied a FAPE.  In the Court’s view reimbursement puts all parties in the position they would have been in if the school district had properly fulfilled its obligations from the start by properly identifying the student and offering an IEP.  

In amending the IDEA in 1997 by adding language that essentially codified case law regarding reimbursement, Congress sought to place some limitations on a school district’s obligation to reimburse parents who make unilateral placements.  Congress’ intent was to include language in the IDEA that would require parents to cooperate with school officials and give them proper notice if they were not happy with decisions or proposals made by school personnel.  The purpose was to give school officials the opportunity to address the parents’ concerns.  It is unlikely that Congress meant that reimbursement was barred in a situation, such as in Forest Grove, where a school district failed to even offer a FAPE, thus denying parents the opportunity to even try a public school placement before removing their child to a private school placement.

It must be kept in mind, as the high Court emphasized, that lower courts retain their traditional powers of equity in special education disputes.  In situations where parents remove a child from the public schools without giving school officials a full opportunity to address their concerns, courts may either reduce or deny reimbursement altogether, just as they always have done.  On the other hand, if a court is convinced that a school district completely abrogated its duty to identify and serve a student with disabilities, and that the parents were justified in obtaining services on their own, reimbursement may be awarded as an equitable remedy.  The Court seems to have struck a proper balance between the interests of the child and those of the school district.

An Attorney's Perspective
John Borkowski, J.D. 
Partner
Hogan & Hartson, LLP
South Bend, IN

In Forest Grove School District v. T.A., 2009 WL 1738644 (U.S.), a 6-3 majority of the Supreme Court avoided the plain language of the Individuals with Disabilities Education Act (“IDEA”) to hold that the statute authorizes reimbursement for the cost of a unilateral private school placement when a school district fails to provide a free appropriate public education (“FAPE”), “regardless of whether the child previously received special education on related services through the public school.”  The majority reached this conclusion despite the clearly contrary language of IDEA itself, which indicates that such reimbursement is only available to “parents of a child with a disability, who previously received special education and related services under the authority of a public agency.”  20 U.S.S. §1412(a)(10)(c) (emphasis added).  Justice Souter, joined by Justices Scalia and Thomas in dissent, pointed out the majority’s anomalous reading of the statute and argued the Court’s policy reasons for overriding the clear import of Congress’ language were misguided.While the facts of Forest Grove made the respondent child T.A. sympathetic   -- because the lower courts all found that the school district erred in finding him ineligible for special education services -- this is a classic case of bad facts making bad law.  Not only did the Court essentially ignore the plain language of the statute, but also its rulings may cost school districts millions of dollars by encouraging parents to seek public reimbursement of unilateral private placements even when their children have never attended public schools.  Such situations also provide an unfair litigation advantage for parents who can use tangible evidence of a child’s success in an actual private placement to attack a merely hypothetical public school placement in a proposed individual education plan.
 
The Court’s ruling also threatens to undermine the collaborative framework of IDEA.  As Justice Souter noted in dissent, it makes good sense that IDEA was written “to require parents to try to devise a satisfactory alternative within the public schools.”However, unless Congress amends IDEA again (and this time makes its intent even more clear), the Supreme Court has now opened the door to more litigation rather than more cooperation.  School districts will have to continue not only to diligently provide FAPE to students with disabilities who attend public schools, but also to expend scarce resources proving in administrative hearings and courts that they could do the same for private school students if they were given the chance. 

A Professor's Perspective
Perry Zirkel, Ph.D., J.D., L.L.M. 
University Professor of Education and Law
Lehigh University
Bethlehem, PA