Supreme Court hears oral argument in private school placement case
The U.S. Supreme Court has heard oral argument in a case that involves the issue of whether parents are entitled to tuition reimbursement under the Individuals with Disabilities Education Act (IDEA) for unilateral private school placements if their children have never attended public school. The Court appeared sympathetic to arguments from the New York City school system that Congress intended to limit when parents of children in special education are entitled to tuition reimbursement when they enroll their children in private schools. "There are a lot of parents who are going to send their children to private schools no matter what. They are well-heeled and this is just an opportunity to have New York City pay $30,000 of it," Justice Antonin Scalia told the attorney representing the parent who challenged the special education program proposed for his son. Under IDEA, reimbursement is available when a school district has failed to provide a free, appropriate education under the terms of the federal law and the private school placement is deemed appropriate. Leonard J. Koerner, the New York City corporation counsel, told the justices that at a minimum, the IDEA requires children to be enrolled in public schools for 10 days before their parents can place them in private schools and seek reimbursement from the public system. "Congress thought if you are in our system and have a vested interest," cooperation between public school districts and families over special education would inevitably improve, Mr. Koerner said. However, Paul E. Gardephe, the parent’s attorney, argued that language in the 1997 reauthorization of the IDEA did not require that children be enrolled at all before parents could pursue the reimbursement option. "I think it’s clear Congress never intended that the child be placed in a patently inappropriate placement to win reimbursement," Mr. Gardephe said. Deputy U.S. Solicitor General Gregory G. Garre, representing the Bush administration, argued in support of the parent that public schools can avoid having to reimburse parents for private school placements if they come up with a proper individualized education program for the child in the first place.
Mr. Gardephe seemed to be getting little support from the justices, except at one point when Justice Samuel A. Alito Jr. told Mr. Koerner that the provision added to the IDEA in 1997 "makes no sense whatsoever." Chief Justice John G. Roberts, Jr. questioned both sides aggressively, but by the end of the argument he seemed to accept that Congress was seeking to limit unilateral private placements. When Mr. Garre argued that the law does not require parents to give an inadequate public school placement a try before placing their child in a private school, the chief justice said, "The whole point is you don’t necessarily know it’s inadequate until later in time." But it was Justice Scalia who returned several times to the undercurrent of the case, which is that wealthy, savvy parents, particularly in New York City, may have figured out how to manipulate the system to be reimbursed for private school tuition when they had no intention of ever enrolling their children in the public system.
The 1997 provision in the IDEA suggests that public school systems "should not have to pay the freight for people who would not be coming to public school anyway," Justice Scalia said. One wrinkle in the case is that Justice Anthony M. Kennedy recused himself from participation. Should the justices end up in a 4-4 tie, a federal appeals court ruling in favor of Mr. Freston would be upheld without an opinion.
Education Week By Mark Walsh
[Editor’s Note: The transcript of the oral arguments is below. For background on the case, including a brief filed by NSBA and the American Association of School Administrators, see the second link. The brief was written pro bono by Maree F. Sneed, John C. Borkowski, Audrey J. Anderson, Catherine E. Stetson, and Jessica L. Ellsworth of Hogan & Hartson LLP.]
Transcript of Supreme Court oral arguments
NSBA School Law pages on Bd. of Educ. of City of New York v. Tom F.