Frank G. v. Board of Educ. of Hyde Park, No. 04-4981-CV (July 27, 2006)

The U.S. Court of Appeals for the Second Circuit ruled in late July that the Individuals with Disabilities Education Act (IDEA) does not preclude public reimbursement of private school tuition for a student who never received any special education or related services from the school district. The court also found that the New York student’s placement at a private school was appropriate. Anthony G. attended private school from kindergarten through fourth grade. When his academic performance worsened over this period, his parents notified the Hyde Park Central School District, which conducted evaluations and concluded he was learning disabled. An independent evaluation subsequently recommended that Anthony receive individualized attention in a small class, as well as occupational therapy, social skills training, and counseling. When the district recommended that he receive direct consultant teacher services, a full-time one-on-one aide, counseling and occupational therapy services, a behavior modification program, and testing modifications, but that he be placed in a regular classroom of 26 to 30 students, his mother requested an impartial hearing to consider her request that he receive these services at his private school. At the hearing, a school district witness conceded that the public school placement was inappropriate because of the class size, but the hearing officer found that the private school placement also was inappropriate because Anthony was not making progress. The hearing officer ordered the district to provide the services at the private school but concluded it was not required to pay the tuition.

An administrative appeal to a state review officer (SRO) led to the same result, with the officer finding that the private school was providing only accommodations, not the specialized instruction in Anthony’s areas of need. The parents then sued in federal court, which found based on additional evidence not available to the SRO that the private school placement was appropriate. While acknowledging that the school was not providing an individual aide or direct consultant teacher services, the lower court was satisfied that Anthony’s teacher worked with him individually when possible and made certain testing and other modifications, and that Anthony was making meaningful progress.

On appeal, the Second Circuit noted that parents are not barred from tuition reimbursement even if the private school does not meet IDEA’s definition of a "free appropriate public education" (FAPE), that the private placement need not meet state education standards or requirements, and that parents may not be subjected to the same mainstreaming requirements as a school board. The issue turns on whether the placement is "reasonably calculated to allow the child to receive educational benefits," an assessment courts make considering the "totality of the circumstances." Like the lower court, the appeals court found the small class size, teacher’s efforts, and Anthony’s progress met this standard.

The court also rejected the school board’s argument that a 1997 amendment to IDEA allows a school district to deny reimbursement to parents who enroll their child in private school before the child ever receives any services from the district. The amendment authorizes reimbursement to parents of a child "who previously received special education and related services" from the district if the district "had not made a [FAPE] available to the child in a timely manner prior to enrollment." Another district court judge had found in an unpublished opinion, Board of Education v. Tom F., 2005 WL 22866, at *3 (S.D.N.Y. Jan. 4, 2005), that this language implies no reimbursement is required where the child has not yet received any district services. The appeals court instead found that the language does not specifically say this and pointed to the U.S. Supreme Court’s holding in School Committee of Burlington v. Department of Education, 471 U.S. 359 (1985). In that case, the Supreme Court found that that a different IDEA provision authorizing a district court to "grant such relief as [it] determines is appropriate" includes tuition reimbursement. "Traditional canons of statutory interpretation" also support this conclusion, the Second Circuit found, which is consistent with the interpretation of the U.S. Department of Education’s Office of Special Education & Rehabilitative Services in a 2000 letter. Nor does IDEA’s legislative history suggest otherwise, the court concluded. Finally, the court distinguished the First Circuit’s ruling in Greenland School District v. Amy N., 358 F.3d 150 (1st Cir. 2004), that reimbursement is only available for students who have previously received district services. The parents in that case had failed even to notify the district of the child’s need for services while she was in public school, the Second Circuit noted, concluding that the First Circuit’s resolution of the statutory ambiguity was unnecessary since IDEA unambiguously requires notice to the district.

[Editor’s Note: The Hyde Park school board has voted to petition the U.S. Supreme Court to review the decision. According to the news article below, board members indicate other New York districts have encouraged them to appeal. "What we're trying to establish is that public schools have the opportunity to develop and provide services to classified students before the parents unilaterally place the students in private schools," explains board member Stephen Hughes. Board president Sharon Matyas says the board is willing to spend up to $100,000 in legal fees to appeal the ruling because the board has a responsibility to "look at the long-term ramifications" of a "costly precedent" that "could end up costing Hyde Park and districts across the state millions of dollars." NSBA’s summary of the First Circuit’s Greenland decision is below. See also a summary of a recent ruling by the Eleventh Circuit, which agreed with the Second Circuit.]

Poughkeepsie Journal
By John Davis
[Link to full story]