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.

For practical purposes, the Frank G. decision does not reveal anything significant that school entities did not already know: LEAs have an ongoing obligation to identify, evaluate, and propose an appropriate program and placement to all eligible children within the boarders of the LEA. However on a legal level, the results of Frank G. reveal a split among the federal appeal courts regarding the need for parents to accept a district’s offer of FAPE before unilaterally removing the child from the public school system and seeking tuition reimbursement at a private school.

In analyzing the tuition reimbursement provision of IDEA, Frank G., unlike the trial court in Tom F. and the First Circuit in Greenland School District v. Amy N., 358 F.3d. 150 (1st Cir. 2004) concluded the statute is ambiguous on the issue of whether parents were required to previously receive special education services before enrolling the student in a private school. Therefore, in applying the canons of statutory interpretation to an otherwise ambiguous provision of the IDEA Frank G. concluded reimbursement is available to parents who do not accept a district’s offer of FAPE before enrolling their child into a private program.

Greenland involved a similar tuition reimbursement dispute and the court concluded otherwise, that the IDEA limits tuition reimbursement to parents who have children who had previously received “special education and related services” while in the public school system or perhaps those who at least timely requested such services while the child is in public school.

With the Supreme Court failing to substantively analyze the language of the IDEA and the case law accompanying this issue, the question of whether parents are required to accept an offer of FAPE before seeking tuition reimbursement will likely arise another day. Until resolved by the Supreme Court, Frank G. and Greenland remain in conflict with each other.

In many respects, regardless of Frank G., school districts still control their own destiny regarding liability for tuition payments. While Frank G. concluded a parent need not accept a district’s offer of FAPE and go through the process of enrolling the child into public schools, the court did say a school district must still be afforded the opportunity to evaluate and propose a program and placement for the child at issue, which is consistent with the earlier holding in Greenland. Therefore, so long as a district appropriately identifies a student’s potential need for specially designed instruction and follows such identification up with appropriate evaluations and programming, a district should have little concern.

 A coda to the problematic Frank G. decision is the ever increasing propensity for judges to “Monday Morning Quarterback” the decisions of impartial hearing officers and appeals panels by considering new evidence not available at hearing.

The Student in question in Frank G. had attended a parochial school prior to his parents seeking an evaluation by district. While the Student was attending the parochial school, the district completed its evaluation and found him eligible for special education. The district subsequently proposed a program and placement in the district. The parents rejected the offer and sought private placement at a new private school (“Upton Lake”).

Evidence presented at the administrative hearings revealed the proposed program and placement offered by the district was inappropriate, a point later conceded by the district. The hearing officer further concluded the proposed private school placement was likewise not appropriate. In doing so, , the Hearing Officer relied on evidence of regression in various academic areas as well as a program and placement that was not reasonably calculated for the Student. A state appeals officer affirmed the decision.

On appeal, the trial court reversed the administrative decisions by considering post-hearing evidence. While the trial court acknowledged that Upton Lake provided the Student with neither an individual aide nor a direct consultant teacher, it was satisfied that the Student’s regular education teacher worked with the Student “when possible.” The court was further persuaded by the Student’s academic progress, which was generally memorialized through one administration of the Stanford Achievement Test.

Ironically, the trial court was willing to overlook the same shortcomings with the private school that resulted in liability to the public school, an all too-frequent and unfortunate irony in these cases.