Monday, January 26, 2009

Supreme Court to Hear Special Ed Case: Tom F. Rides Again

The U. S. Supreme Court has accepted another special education case. The issue is whether a student must first be enrolled in a public school and be receiving special education services before the parents may be awarded reimbursement for a unilateral private placement. The case being appealed is Forrest Grove School District v. T.A. 523 F.3d 1078 (9th Cir. 2008).

The facts of the case are that the parents had asked to have the student evaluated. The school district evaluated the student and found that he was not eligible for special education. The parents enrolled the student in an expensive private school. Accordingly the student never received special education in the public school system. The district balked at paying the $65,000 bill. A due process hearing officer found for the parents. The U. S. District Court reversed. Then the Ninth Circuit Court of Appeals again reversed. Here is a news account of the case.

This may sound like deja vu all over again. The Tom F. case raised the same issue and was heard by the Supremes in 2007, but the court ducked the issue. In a rare 4 to 4 tie vote, with Justice Kennedy recusing himself and not participating in the argument or decision, the high court affirmed the lower court but because of the tie vote, the decision only has precedential for the second circuit. Board of Education v. Tom F. 522 U.S.____, 128 S.Ct. 1, 48 IDELR 239 (per curiam 2007).

As I have previously written, it would be nice if the Supreme Court would tackle a bigger issue. The Court has never addressed the concept of least restrictive environment, for example. Debates in the field of special education law rage over the current meaning of FAPE, whether eligibility standards are becoming excessively restrictive, the degree to which an IEP must be implemented, etc. I understand that the high court can't exactly pick its own issues, but I am always surprised by the tangential special education issues that fascinate the justices. Many of you apparently agree. In the very unscientific poll we ran on this blog concerning "Which Issue Next for US Supreme Court," that Tom F. issue came in tied for fourth with three other issues. In that poll, least restrictive environment was the issue that finished first for additional Supreme Court interpretation.

Nonetheless, any supreme court guidance is better than none! Here are links to previous posts on the Tom F decision in this blog:
July 24, 2007, October 11, 2007, and May 14, 2008.


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