Forest Grove Sch. Dist. v. T.A., No. 05-35641 (9th Cir. Apr. 28, 2008)

In a two to one split, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP) has ruled that the parents of a student who never received special education services from an Oregon school district may be able to recover the costs of private school placement under the Individuals with Disabilities Education Act (IDEA). T.A. was enrolled in the Forest Grove School District (FGSD) from kindergarten until the spring semester of his junior year. He was evaluated only once for a disability and never received any special education services. After he became a chronic marijuana user and began engaging in self-destructive behavior, his parents removed him from public school and sought reimbursement under IDEA for the cost of the private school. T.A. was first enrolled in an outdoor therapy program and then placed in a private residential school “designed for children who may have academic, behavioral, emotional, or motivational problems.” A hearing officer (HO) ruled that T.A. was disabled, eligible for special education services under both IDEA and § 504 of the Rehabilitation Act, and had been denied a free appropriate public education (FAPE) as required by IDEA. The HO concluded that FGSD was not responsible for the cost of the outdoor therapy program, but was responsible for the cost of the private residential school placement. FGSD appealed to federal district court, which reversed the HO’s decision, holding that the HO had erred as a matter of law in granting private school reimbursement. It ruled that T.A. was “statutorily ineligible for reimbursement under” IDEA. It concluded that “[e]ven assuming that tuition reimbursement may be ordered . . . under general principles of equity . . . the facts in this case do not support such an exercise of equity.”

The Ninth Circuit panel reversed and remanded the case for reconsideration. The panel addressed only whether a student who has never received special education services from a school district may be eligible under IDEA for reimbursement of the cost of private school placement. It began its analysis by pointing out that prior to 1997 IDEA had been silent on the subject of private reimbursement, but that courts had granted such reimbursement as “appropriate” in reliance on the principles of equity enumerated in IDEA. In 1997 Congress had amended IDEA to allow parents whose child had previously received special education services from a school district to obtain reimbursement for unilateral placement in private school if it was determined by a HO or court that the school district had failed to provide FAPE. As a result, the panel stated that its task was to determine whether the provision in the 1997 amendment “bars private school reimbursement for students who have not ‘previously received special education and related services,’ or whether those students remain eligible for private school reimbursement, as they were before 1997, under principles of equity pursuant to [IDEA].” The panel pointed out that the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) had already addressed the same question in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006), cert. denied, 128 S. Ct. 436 (2007) and concluded that the 1997 amendment does not “categorical[ly] bar … recovery of private school reimbursement for all other students.” It agreed with and adopted the Second Circuit’s analysis and conclusion. It found persuasive the Second Circuit’s reasoning that reading the 1997 provision as creating a categorical bar would defeat the purposes of IDEA to provide children with disabilities with free and appropriate education. It also agreed with the Second Circuit that a categorical bar would lead to absurd results, such as parents of a child waiting an indefinite, and perhaps lengthy, period until the child receives services or, as in the case here, the school district declining to recognize the student as disabled and preventing the student from ever receiving services. It, therefore, held “that students who have not ‘previously received special education and related services’ are eligible for reimbursement, to the same extent as before the 1997 amendments, as ‘appropriate’ relief pursuant to the principles of equity under IDEA.

Addressing those principles of equity as applied to the parents’ request for reimbursement, the panel ruled that the district court made two legal errors in discussing the relevant equitable considerations. It concluded the district court’s finding that the equitable considerations in favor of granting reimbursement did not “override the statutory requirements for tuition reimbursement” was in error because there are no statutory requirements for tuition reimbursement for students who have never received special education services. It also found that the district court had applied the incorrect legal standard, i.e. “tuition reimbursement may be ordered in an extreme case for a student not receiving special education services.” It emphasized neither U.S. Supreme Court nor Ninth Circuit case law suggests such a standard, and there is nothing in the statutory language of IDEA to support that standard. Lastly, it earmarked some factors that the district court should consider regarding the question of reimbursement including notice by the parents that they intended to remove the student from school and “the existence of other, more suitable placements, the effort expended by the parent[s] in securing alternative placements[,] and the general cooperative or uncooperative position of the school district.”

The dissent disagreed with the majority’s adoption of the reasoning in Frank G. It argued that the majority was expanding the availability of tuition reimbursement beyond those situations when FAPE is at issue. It pointed out that FAPE was not at issue before T.A. was withdrawn, which distinguished the present case from Frank G. Further, the dissent argued that even “assuming that equitable principles extend to this situation, I do not understand the court’s opinion to compel a finding of reimbursement on remand.” It pointed out that “T.A. was unilaterally pulled from public school and placed in private school on account of drug issues, not learning disabilities; the parents receded from their position that T.A. was not entitled to special education services only after voluntarily placing him in private school and consulting an attorney; and there is no evidence of any change in T.A.’s need for special education services in the meantime.”

[Editor’s Note: In October 2007 the U.S. Supreme Court split 4-4 in Board of Education v. Tom F., 128 S.Ct. 1 (mem.) (2007), an appeal of a later Second Circuit decision that had applied the reasoning of Frank G. The Supreme Court’s split had the effect of upholding Frank G. and Tom F. as to the states comprising the Second Circuit. See below.]
NSBA School Law pages on Board of Education v. Tom F.

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