Tom F Rides Again

The federal Ninth Circuit Court of Appeals has issued a decision in Forest Grove School District v. T. A., No. 05-35641 (April 28,2008) that holds that a student need not first receive special education services before his parents may be awarded reimbursement for tuition for a unilateral placement. The court could have distingusihed this case as an eligibility case, but NO, instead it chose to align itself with the Second Circuit and its decision in Tom F. There is some very good language in the opinion about the equitable powers of courts, and presumably hearing officers, under the Burlington decision to remedy violations of denial of FAPE. You can follow the reasoning of the Ninth Circuit decision at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F83F9960BF554187882574390057E776/$file/0535641.pdf?openelement

You may remember the Board of Education of the City of New York v. Tom F. nondecision by the United States Supreme Court last October. The Court affirmed the decision of the Second Circuit by upholding the ruling that a parent of a student with a disability may seek reimbursement for a unilateral placement in a private school even though the student never received special education services from the public schools. The decision of the court has no precedential value outside the Second Circuit because Justice Kennedy recused himself and the remaining justices deadlocked 4 - 4. A copy of the one page decision may be found at http://www.supremecourtus.gov/opinions/07pdf/06-637.pdf

The First Circuit has reached the contrary conclusion. Some special ed law pundits have pointed out that one must periodically consult a map of the federal circuits to determine what the law is where they are. They decry the lack of consistency and certainty.

In the broader context though , special education law is new law. When lawyers talk about new law, we mean anything that didn't travel over on the boat from England. Special ed law began in the 1970's. It is brand new law. Like other kinds of new law, there is a certain amount of public policy mixed in with congressional mandates and judicial and administrative decisions. One won't find many hornbook rules as in, say, contract law. Because special ed law is new law, however, these sorts of stops and starts are to be expected. They may, in the long run, be good. While I sympathize with teachers and principals who are trying hard to implement rules that we cannot even get the federal circuits to agree upon, I, nonetheless, believe that these things are necessary as this new body of law grows. So fasten your seat belts and place your tray tables in their upright positions. Hopefully, the oxygen masks will not be necessary.