Friday, April 24, 2009

The New Case Before the Supreme Court - Part IV

The case of
TA v. Forrest Grove Sch Dist goes to oral argument before the U. S. Supreme Court next week. I found a very provocative article about the private school attended by the student in Time Magazine. Here is a link.

One comment in the article bothers me a little bit. It states that the validity of the practices of the residential school is not at issue- only whether under IDEA the school district must reimburse the parents for tuition. While it is true the the appropriateness of the program is not an issue in this case yet, the parents in every reimbursement case must prove three things before they may be awarded reimbursement; that the district denied FAPE; that the private placement is appropriate to the student's needs; and that the equities favor reimbursement. Doesn't the second prong cover what the article says is not relevant? Am I wrong?

The briefs for the case can be found here. One point in the district briefs causes me some concern. For example in their reply brief at p. 5-6 the district contends that only courts and not hearing officers have the power to award tuition reimbursement. Although I concede that some say I have an expansive view of the powers of a due process hearing officer (my powers are beyond your comprehension!), I believe that this is wrong. First, if we require exhaustion of administrative remedies for almost everybody, that is you must first have a due process hearing before going to court, it would be absurd to not permit hearing officers to award all appropriate relief. Granted the HO decision is subject to appeal and courts can reverse, but do we really want all cases appealed to court? Wouldn't that defeat the judicial economy philosophy underlying the exhaustion doctrine? Second, OSEP, whose opinions are entitled to some deference though not precedential value, has opined that HOs have such powers. Third, many courts have considered HO awards of reimbursement, and at least implicitly have approved of the authority to award such relief by being silent as to the issue. In short, I think that HOs must have this authority.

By the way there is still time to vote on the special education law blog poll on this case. If you were on the high court how would you vote? For the parents now have a 17 to 12 vote lead over for the district. Cast your vote on the left hand side of this blog.


  1. There seems to be a problem with the link to the Time article.

    I also find the idea that hearing officers cannot grant reimbursement baffling and counterintuitive. I hadn't encountered it before reading the District's brief in this case.

    It seems to fit with the District's general approach in this case, though, which is to equate tuition reimbursement with relief like attorney's fees, a distinct form or relief authorized by the act, rather than a form of relief derived from the obligation to provide a FAPE. It seems like the District's reasoning would apply to all forms of reimbursement, and effectively limit monetary awards to those situations specifically authorized by IDEA.

  2. Sorry abouit the link. I can't seem to find the article now. Maybe it was time sensitive?


    Would this be the article to which you are referring?