Tom F.: the decision that isn't
Mark Fitzgerald is again our guest blogger, writing about the U.S. Supreme Court's non-decision about tuition reimbursement. Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.
In a one sentence decision, an evenly divided U.S. Supreme Court in Board of Education of the City School District Of New York, No. 06-637, --- U.S. --- (2007) (Justice Kennedy did not participate) affirmed the decision of the Second Circuit Court of Appeals in finding parents need not accept a public school offer of a free appropriate public education before enrolling their child into a private school placement for purposes of the Individuals With Disabilities Education Act (“IDEA”). Substantively, however, the Court “punted” on analyzing the statutory constructs of the IDEA to determine whether such a right exists for parents who have never accessed public education prior to unilateral private school placement. Therefore, the dispute surrounding this issue was not put to rest late last week.
With this “decision,” the Supreme Court affirmed an equally short decision by the Second Circuit, which had vacated and remanded the holding of the trial court in light of the decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir.), cert. denied, --- U.S. ---, 127 S.Ct. 3054 (2006). Therefore, while the decisions, or lack thereof, of both the Second Circuit and the Supreme Court together combine to form a modest sized paragraph, our analysis must turn to the comprehensive, yet peculiar decision by the Second Circuit in Frank G. in order to glean what the Supreme Court decision means for school entities, if anything at all.
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