This is another installment in our continuing
series on the basics of special education law. Today we enter the
mysterious world of unilateral placements. If the parents (or adult
student) win a due process hearing, the two most common types of relief
are compensatory education and reimbursement for a unilateral
placement. Today we will take a hard look at the latter remedy.
Unilateral Placements
In the case of Burlington Sch. Comm. v. Dept. of Educ., et. al.
471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court
was faced with the issue of whether the IDEA permitted courts to award
reimbursement to parents when the IEP developed by the schools is not
appropriate and the parent removes the student from public school and
places him in a private school that does provide FAPE. Noting that the
statutory provisions of the IDEA confer broad equitable powers upon the
courts to fashion an appropriate remedy, and the fact that judicial
review of IDEA cases often takes years, the Supreme Court held that the
IDEA does empower courts to award such reimbursement. Burlington, supra.
In Florence County Sch. Dist. v. Shannon Carter, et. al.
510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was
faced with a unilateral placement case in which the public schools
provided an inappropriate education leading to a unilateral placement at
a private school that provided an appropriate education for the student
but that did not meet some of the requirements of the SEA (specifically
state approval of the private school.) The Supreme Court held that
courts may award reimbursement in these cases. Carter, supra.
In Forrest Grove Sch Dist v. TA 129 S.Ct. 2484, 52 IDELR 151 (U.S.
6/22/9) The Supreme Court held that it is not a prerequisite to
reimbursement under IDEA that a child have been previously enrolled in
and receive services from a public school. The Court noted that under
its previous rulings in Burlington and Carter, courts have
broad authority to grant appropriate relief when there has been a
violation of IDEA. The Court held that the 1997 amendments do not limit
that authority. The ambiguous language of the provision at issue was
not sufficient to effectuate a repeal by implication of Burlington and Carter.
The IDEA now provides that a hearing officer or court may order an LEA
to reimburse parents for a unilateral placement if the hearing officer
or court finds that the LEA had not made FAPE available to the student
in a timely manner prior to the enrollment in the private school. IDEA,
§ 612 (a)(10)(C)(ii). Such reimbursement may be reduced or denied if
the parents failed at the last IEP meeting to reject the proposed
placement and state their intent to enroll the child in private school
at public expense, IDEA, § 612 (a)(10)(C)(iii)(I)(aa); or if they fail
to give written notice to the LEA of their rejection of the proposed
placement and state their intent to enroll the child in private school
at public expense 10 business days prior to removal, IDEA, § 612
(a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student
available for an evaluation, IDEA, § 612 (a)(10)(C)(iii)(II); or upon a
judicial finding of unreasonableness with respect to the actions taken
by the parents, IDEA, § 612 (a)(10)(C)(iii)(III). Reimbursement shall
not be reduced or denied for failure to give notice if the school
prevented the parent from providing such notice, IDEA, § 612
(a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written
procedural safeguards stating this notice requirement, IDEA, § 612
(a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would
likely result in physical harm to the child, IDEA, § 612
(a)(10)(C)(iv)(I)(cc). Within the discretion of the hearing officer or
court, reimbursement may or may not be reduced or denied if the parents
are illiterate or cannot write in English, IDEA, § 612
(a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely
result in serious emotional harm to the child, IDEA, § 612
(a)(10)(C)(iv)(II)(bb). See also, 34 C.F.R. § 300.148.
The general rule, then, is that reimbursement for a unilateral placement may be awarded where a parent/student proves the following:1) the school district denied FAPE to the student or otherwise violated IDEA; 2) the
parent's private school placement for the student is appropriate; and 3) equitable factors do not
preclude the relief. Forrest Grove
Sch Dist v. TA 557 U.S. 230, 129 S.Ct. 2484, 52 IDELR 151 (U.S. 6/22/9)
