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.
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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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.
I will admit that I'm not the sharpest tool in the shed, but this ruling really bothers me. The state sets the parameters of diagnosing all disabilities. As psychometricians, we are not allowed to deviate from the state guidelines. Thus, we have public school evaluation personnel following the state guidelines being over-ridden by private evaluation specialists in a residential facility and being told to pay for a treatment program that the school wouldn't normally have access to for other students.
ReplyDeleteBTW, any chance the private diagnosis was influenced by the need for insurance payments? I don't have enough information to state rightly whether the child is disabled or not, but I don know that this case is very troubling to those of us who work in the field.
Considering Mike's post above.....it seems to me that anytime a parent files for reimbursement, they do so through the normal procedural safeguards.....due process. In doing so, the parents have the burden of proof that the school failed to provide FAPE, a fairly high standard given special ed court cases. So, a due process hearing becomes essentially one of dueling experts, the school's experts vs. the student's experts (private evals, etc). It's not that the private specialists are "overriding" anyone. In a hearing, the HO is weighing the testimony and making a determination. If the parents win, it means that the school's program was substantially deficient, not that a private treatment system is overiding a public one.
ReplyDeleteWhat if the school district insists that there is no best way to teach reading or math despite numerous national panel reports and IES practice guides that clearly say these kids need explicit instruction of a sequential nature?
ReplyDeleteIf a school district insists on continuing with whole language or an inquiry approach to math in dealing with RtI or special ed kids, does Forest Grove make it more likely that a parent can get reimbursement for a private school that offers personnel who have been trained to overcome dyslexia and who offer explicit instruction with examples and explanations?
Doesn't Forest Grove show that the schools can't be intransigent and ignore available objective evidence if they wish to avoid placement outside the public system?
This is a very good discussion.
ReplyDeleteOne point to remember, the school district conceded eligibility and denial of FAPE on appeal. I'm not sure why, but those issues were not before the court.
Jim
Anon,
ReplyDeleteAs most readers know, I am a neutral and cannot give legal advice or comment on actual fact situations. Assuming that you are posing a hypothetical; for informational purposes only: Remember that before a parent can seek reimbursement there must be a denial of FAPE or some other violation of the Act. Districts are not required to provide the best methodology to provide FAPE.
My view is that Forest Grove changes little in this regard.
It is a hypothetical but it is prompted by the many factually incorrect assertions I have heard that ignore the research available.
ReplyDeleteIs it an "appropriate" education if the school district chooses to ignore the supplied research?
Do schools have an obligation to provide research based instruction in actuality or is it enough that they say they are doing it?
Is the fact that a child is not entitled to the "best" methodology mean that any methodology will suffice?
But the central issue remains; there was no denial of FAPE, since no entrance into special education was conferred.
ReplyDeleteSo how is there a denial for that which did not take place? That's what is puzzling to me.
Boy, I can hardly wait until August.