The recent decision by the supremes in
Forest Grove Sch Dist v. TA 557 U.S. _____, 109 LRP 36046(6/22/2009) has been cited by both the parents bar and the school district bar as a major development. We will have to wait and see whether the number of unilateral placements grow as a result.
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Before we get to the reasoning of the high court, we should review what the court did not decide. In the all important footnotes to the Court of Appeals decision, it was revealed that the school district had waived the key issues of eligibility and denial of FAPE. Many people had questioned how a student with serious cannabis abuse issues could be eligible. But that issue was not properly before the court. The only issue was whether the 1997 amendments provision {Section 612(a)(10)(C)(iii)} prohibited reimbursement for unilateral private school placements by parents whose child never received special education from a public school.
The court first reviewed its decisions in Burlington and Carter and renewed their holdings that where a school district denies FAPE and a parent's private placement is appropriate and the equities so permit, a court has broad equitable authority to award appropriate relief including reimbursement for private placements. It is interesting that both Burlington and Carter were unanimous decisions by the high court.
The issue then was whether the 1997 amendments required a different result in this case. the
Supreme Court rejected the school district's reading of the statutory provision. The Court found that Section 612(a)(10)(C) did not prohibit reimbursement in other circumstances but rather just permits it in the common circumstance where a child is receiving special education in public school. The Court ruled that these statutory provisions were "elucidative rather than exhaustive." Slip Op at p. 11. (Justice Souter's dissent has some fun with this phrase noting that "When a mother tells a boy that he may go out and play after his homework is done, he knows what she means.")
The
majority opinion goes on to note that the 1997 amendments do not impliedly repeal the Burlington and Carter decisions. The opinion notes that it would take more than Congress' failure to comment on previous decisions by the Supreme Court to effect a repeal by implication, which is a doctrine that is not highly favored in the law.
The court then notes that the school district position is inconsistent with the remedial purpose of IDEA and the 1997 amendments thereto. The strong purpose of providing children with a disability with a free and appropriate public education was paramount in the reasoning of the court in Burlington, Carter and this case.
In perhaps the strongest statement in the majority opinion, the Court states that immunizing a school district's refusal to find a child eligible "... no matter how compelling the child's need... would produce a rule bordering on the irrational." The court noted the anomalous result of the school district's position in that it would permit reimbursement where a district offered inadequate services but would leave parents without the remedy in the more egregious situation in which a district unreasonably denies a child access to such services altogether. In rejecting the availability of procedural safeguards provided by IDEA other than reimbursement as an alternative, the court once again noted that the "review process is ponderous."
Finally the majority rejected arguments concerning the spending clause and financial burden. The Court noted that school districts have been on notice concerning the remedy of reimbursement at least since the Burlington decision. The argument that the result would encourage less cooperation and more expense was rejected as unfounded because reimbursement is only permitted where the district violates IDEA, the parents' placement is appropriate and the equities do not favor denial or reduction of the reimbursement.
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