Supreme Court to Decide New Special Ed Case; Trends in Special Ed Law
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In this issue of The Special Ed Advocate, http://www.wrightslaw.com/nltr/07/nl.0815.htm
We'll tell you about a very important case that will be decided by the
Supreme Court this year.
You'll learn how the case began, evolved, and why it is so
significant. We'll suggest that you do a little heavy reading - and
why you'll be glad you did.
We'll also discuss what may be a new trend in special education law.
Feel free to forward this issue of the Special Ed Advocate to a
friend.
Do All Children with Disabilities Have a Right to a Free Appropriate
Public Education?
On Monday, October 1, 2007, the U.S. Supreme Court will hear oral
argument in New York City Board of Education v. Tom F., on Behalf of
Gilbert F., a Minor Child.
The Court will decide whether all children with disabilities,
including those who attend private schools, are entitled to a free
appropriate public education (FAPE). The decision will have
significant implications for parents, school districts, and children
with disabilities who receive special education services.
In the 30 years after the special education law was enacted, the high
court heard a handful of special education cases. The most critical
are Rowley (1982), Burlington (1985), Honig v. Doe (1988), Florence
County v. Shannon Carter (1993), and Cedar Rapids v. Garret F. (1999)
In 2005, that trend changed. The Court issued decisions in Schaffer v.
Weast (2005), Arlington v. Murphy (2006), and Winkelman v. Parma Sch.
District (2007), with a decision in New York City Bd of Education v.
Tom F. due by the end of the 2007-2008 term.
Summary of the NYC Bd of Ed. v. Tom F. Case
In New York City v. Tom F., Tom placed his son Gilbert in a private
special education school because the school district was unable to
provide an appropriate program. For two years, the school district
reimbursed the parent for the private school tuition. Later, the
school district developed an IEP that placed the child in a special
education class in a public school.
Convinced that the proposed program and placement did not provide his
child with a free appropriate education, the parent continued his
son's education in the private school. He requested a special
education due process hearing to challenge the school district's IEP
and to request tuition reimbursement for the private school.
An impartial hearing officer found that the school district did not
offer an appropriate program and granted the parent's request for
tuition reimbursement. The hearing officer found that the parent "did
everything asked of him . . . in regard to this matter." The school
district appealed. A state review officer affirmed the hearing
officer's decision.
The school district appealed to U.S. District Court. The U. S.
District court reversed the decisions of the impartial hearing officer
and state review officer, and held that the Individuals with
Disabilities Education Act does not require a school district to
reimburse a parent if the child has never been enrolled in public
school.
The relevant statute reads:
(ii) Reimbursement for Private School Placement. 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 or secondary school without the consent
or or rferal by the public agency, a court of 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." 20 U.S.C 1412(a)(10)(C)(ii)
(page 74 in Wrightslaw, Special Education Law, 2nd Edition)
The U.S. Court of Appeals for the Second Circuit vacated and remanded
the decision "in light of this Court's decision in Frank G. v. Board
of Education of Hyde Park, 14 No. 04-4981, --- F.3d ---, 2006." The
Second Circuit held that the IDEA was not meant to deny reimbursement
to students who have never been enrolled in public school. To rule
otherwise would be to require parents to enroll children in
inappropriate public school programs before they could be eligible for
tuition reimbursement.
On February 26, 2007, the U.S. Supreme Court granted certiorari in New
York City Board of Education v. Tom F., on Behalf of Gilbert F., a
Minor Child.
On Monday, October 1, 2007, the first day of the new term, the Supreme
Court will hear oral argument in New York City Bd of Ed. v. Tom F.
Tom F. and his son Gilbert are represented by Paul G. Gardephe, Esq.,
Patterson Belknap Webb & Tyler LLP. Leonard J. Koerner, Esq., and
Corporation Counsel for the City of New York represent the New York
City Board of Education.
Question Presented
"Does the holding of the United States Court of Appeals for the Second
Circuit, stating that the Individuals with Disabilities Education Act
permits tuition reimbursement where a child has not previously
received special education from a public agency, stand in direct
contradiction to the plain language of 20 U.S.C. § 1412(a)(10)(C)(ii)
which authorizes tuition reimbursement to the parents of a disabled
child "who previously received special education and related services
under the authority of a public agency"?
Significance of NYC v. Tom F.
In New York City Bd of Ed. v. Tom F. the Supreme Court will determine
if a child will be forced to "try" an inappropriate placement before
the parents can remove the child to an appropriate placement and seek
reimbursement.
If the Supreme Court affirms the decision by the Second Circuit,
parents will have the right to obtain reimbursement from the public
school even if the child was never enrolled in a public school special
education program.
Parents will still be required to show that the district's proposed
program was inappropriate and that the private special education
program they chose is appropriate, consistent with the established
tuition reimbursement remedy authorized by the IDEA and the Supreme
Court's decisions in Florence County School District Four v. Shannon
Carter, 510 U.S. 7 (1993) and School Committee of Burlington, Mass v.
Department of Education, 471 U.S. 359 (1985).
If the Supreme Court reverses the Second Circuit, parents will have
two choices:
they can place their child in an appropriate private program and
forfeit any chance to obtain reimbursement, or they can place their
child into an inappropriate public school program so they can later
remove the child from that program and seek reimbursement.
Briefs Filed
The parties have filed briefs in support of their positions for the
Court's consideration.
Parent's Brief http://www.harborhouselaw.com/law/plead/tomf.parent.brief1.initial.pdf
School District's Brief http://www.harborhouselaw.com/law/plead/tomf.nyc.brief1.initial.pdf
Amicus Briefs Filed
Amici curiae ("friends of the court") have filed briefs in New York
City Bd of Ed. v. Tom F. Amicus briefs provide additional information
on specific areas of law or other aspects of the case to assist the
Court in the decision-making process.
Briefs in Support of Tom F. and Gilbert F.
Amicus briefs have been filed in support of Tom F. and Gilbert F. by:
The Solicitor General of the United States
http://www.harborhouselaw.com/law/plead/tomf.amicus.solgen.pdf
The Council of Parent Attorneys and Advocates and New Jersey Special
Education Practitioners
http://www.harborhouselaw.com/law/plead/tomf.amicus.copaa.pdf
The National Disability Rights Network (formerly Protection and
Advocacy) and the New York Lawyers for the Public Interest
http://www.harborhouselaw.com/law/plead/tomf.amicus.ndrn.pdf
The International Dyslexia Association, NAMI, Mental Health America,
and The Bazelon Center
http://www.harborhouselaw.com/law/plead/tomf.amicus.ida.pdf
Autism Speaks
http://www.harborhouselaw.com/law/plead/tomf.amicus.autspks.pdf
Briefs in support of New York City Board of Education
Amicus briefs have been filed in support of New York City Board of
Education by:
The National School Board Association
http://www.harborhouselaw.com/law/plead/tomf.amicus.nsba.pdf
Great City Schools
http://www.harborhouselaw.com/law/plead/tomf.amicus.greatcities.pdf
New York State School Boards Association
http://www.harborhouselaw.com/law/plead/tomf.amicus.nyscba.pdf
U.S. Conference of Mayors, et al. (requested, not received)
News
Supreme Court to Hear Oral Argument in NYC Board of Education v. Tom
F., on Behalf of Gilbert F., a Minor Child on Monday, October 1, 2007.
Article includes background of case, issues to be decided,
significance, links to briefs filed on behalf of Tom and Gilbert F.
and NYC Bd of Ed., news. (08/08/07)
A Short History of New York Bd of Education v. Tom F., on Behalf of
Gilbert F. describes key events in case, from Gilbert's entry into
Kindergarten in 1996 to the decision by the U.S. Supreme Court to
grant cert in February 2007 and the scheduling of oral argument for
Monday, October 1, 2007. (08/12/07)
City To Battle at High Court Over Special Education by Joseph
Goldstein, The New York Sun. "The federal government is siding against
New York City in a case before the U.S. Supreme Court that parents of
children with disabilities are watching closely . . ." (07/20/07)
Fighting Propaganda Over Tom F. With Facts. Text of letter to The New
York Times from attorney Selene Almazon, past president of the Council
of Parent Attorneys and Advocates (COPAA), about one-sided, biased
media coverage of the case based on false perceptions. (from Special
Education Law Blog, 04/11/07)
U.S. Supreme Court grants certiorari in New York City Board of
Education v. Tom F., on Behalf of Gilbert F., a Minor Child. (02/26/07)