Legal Clips, [October 2007]The U.S. Supreme Court has affirmed a federal appellate decision allowing the father of a learning-disabled child to seek private school tuition reimbursement from New York City without first giving the city's public school program a chance to meet the boy's needs. Just nine days after hearing oral arguments in Board of Education v. Tom F., 06-637, the Court split 4-4, thereby affirming the 2nd U.S. Circuit Court of Appeals' finding in favor of Mr. F.¯the boy's father, former Viacom chief Tom Freston. In its two-sentence, per curiam opinion, the Court did not reveal the judges' individual votes, stating only, "The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the decision of this case." Per Court protocol, Kennedy did not reveal the reason for his recusal. The case centers on whether a 1997 amendment to the Individuals with Disabilities Education Act (IDEA) requires children to first receive "special education and related services" from a public agency before their families pursue reimbursement. Throughout the dispute, the parents’ supporters have argued that by forcing parents to enroll their special-needs children first in the city's schools, New York would potentially subject the already challenged students to unnecessary disruptions. The city contended that it spent millions of dollars each year reimbursing the private school tuition spent by parents who had not first given the city's public schools a chance, as required¯the city argued¯by federal law.
Leonard Koerner, who argued the city's case before the Supreme Court, noted in an interview that the issue may be further litigated. As a 4-4 affirmance, the decision has no precedential value outside of the 2nd Circuit. The decision leaves a split in authority with the 1st Circuit, where an appellate panel ruled that students must first avail themselves of the public school system before their parents seek reimbursement. If Justice Kennedy recused himself from the present case for a reason specifically related to Tom F., i.e., a connection with the city or a relationship with Mr. Freston, the Court may elect to revisit the issue and, essentially, allow Justice Kennedy to cast the deciding vote. A strong candidate has already presented itself to break the tie: Frank G. v. Hyde Park, a case decided by the 2nd Circuit simultaneously with Tom F. In Frank G., the appellate court came to an identical, if more intricate, holding. Analysts seeking to handicap a potential Supreme Court hearing of Frank G. can glean very little from last week's arguments in Tom F., which revealed little of how the 4-4 split may have divided. Chief Justice John Roberts questioned both sides vigorously. Perhaps the only justices to show their hands were Justice Antonin Scalia, who appeared to be sympathetic to the city's arguments, and Justice Samuel Alito, who appeared skeptical.
LAW.COM By Mark Fass (New York Law Journal)
Board of Educ. of the City of New York Sch. Dist. v. Tom F.
[Editor’s Note: The Second Circuit comprises New York, Connecticut, and Vermont. Background on the case and the oral arguments, including NSBA’s amicus brief, is below. Information on the Frank G. case is at the second link. The conflicting First Circuit decision (ME, MA, RI, VT, P.R.) is summarized at the third.]
NSBA School Law pages on Tom F. oral argument
NSBA School Law pages on Bd. of Educ., Hyde Park Central Sch. Dist. v. Frank G.
NSBA School Law pages on Greenland School District v. Amy N.