Tuesday, March 10, 2009

The New Case Before the Supreme Court - Part II

The U. S. Supreme Court has accepted Forrest Grove School District v. TA, 50 IDELR 1 (9th Cir. 4/28/08) for review. (I haven't figured out how or why but the Jureeka automatic links to court citations are messing up my blog if you need citations, please email me or leave a comment with an address.) The last post in this series discussed the facts of the case.

If the issue in this case seems like deja vu all over again, it is! Just as in the Tom F case recently not decided by the Supreme Court, the issue once again 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 due process hearing officer ruled that the school district denied FAPE to the student by not finding him to be eligible and not providing services. He ordered the district to reimburse the parents for the tuition of the student at the Bachelor Academy, but not the Wilderness Expedition. The monthly tuition at the Bachelor Academy was $5,200.

The U S. District Court reversed stating that the statutory provision requiring that a student attend public school before his parents may seek reimbursement precluded reimbursement in this case. (If you feel like special ed law is confusing, you are not alone. Just note the number of reversals in this case as an example. "New law" is confusing even for judges and hearing officers!)

The Ninth Circuit reversed the District Court by a vote of 2 to 1. The Court adopted the reasoning of the Second Circuit in Frank G v. Bd of Educ (2d Cir 2006), cert den 128 S.Ct 436 (2007).

The Ninth Circuit majority found that the equitable power of courts and hearing officers to fashion appropriate relief when their has been a violation of IDEA, including reimbursement for unilateral placements, exists under the Supreme Court decisions in Burlington and Carter independently of the power to order reimbursement now codified in IDEA. The decision also held that the statutory provision in question is ambiguous. The opinion points out that the school district argument would lead to an absurd result inasmuch as parents would have to wait, sometime for long periods of time, for the child to receive special education in the public school, no matter how uncooperative the school district and no matter how inappropriate the education the child received. The Court also notes that in cases, like the one being decided, the student would never receive special education in the public school because he would never be found eligible, and therefore, would never be entitled to reimbursement regardless of the validity or invalidity of the eligibility decision.

We will ponder how the high court might rule on this case in our next post.

Please take note in the meantime of the new poll on the left hand-side of the blog.concerning how you would vote on this case if you were on the U S Supreme Court. Remember our polls may be fun but they are not science! Vote your position.


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