Supreme Court Affirms Tuition Reimbursement for Private School Placement

  The Supreme Court has affirmed the decision of the Second Circuit Court of Appeals in Board of Education of the City of New York v. Tom F. and Gilbert F.  This case involves a family that  placed  their son Gilbert, who has a learning disability, in a private school program because the school had not offered an appropriate program. At that time, the school district agreed to pay the tuition of the private placement and did so for the 1997-98 and 1998-99 school years. Thus, the school district paid for the private school placement and  Gilbert never physically attended public school. The school district then proposed for the 1999-2000 school year that Gilbert attend public school and refused to continue paying the private school tuition. Still believing the public school placement to be inappropriate, the family requested a due process hearing.

  The hearing officer agreed with the family that the public school placement was inappropriate and the school district appealed to a state level review officer who also agreed with the family. The school district then filed in federal district court.

  The district court ruled for the school district saying that since Gilbert had never received special education services from the school district the IDEA did not require the school district to pay for his private placement. The parents appealed to the Court of Appeals.

  In the mean time, the Second Circuit Court of Appeals had decided a similar case Frank G. v Board of Education of Hyde Park, holding that the IDEA did not require parents to first place their child in an inappropriate public school placement in order to be reimbursed for private school tuitiion. So, the Second Circuit vacated the district court decision regarding Gilberts’ placement and remanded the case back to the district court to reconsider based on the Court of Appeals decision in the Hyde Park case. The school district appealed to the Supreme Court.

  The Supreme Court  affirmed the Court of Appeals decision requiring the school district to pay tuition for Gilbert’s private school placement. But this affirmation was by a four to four vote because Justice Kennedy did not take part in the decision. As a result the decision affirms the Second Circuit Court of Appeals decision, but does not set precedent on this issue. The other second circuit case Frank G. v. Board of Education of Hyde Park  has also been appealed to the Supreme Court, but has not yet been accepted by the Court. If it is, and if Justice Kenndy participates in the decision, we should get a majority decision on this issue.

  The IDEA  and its regulations requires that  if parents can establish that (1) the public school placement being offered is inappropriate and (2) the private program where they have placed their child is appropriate, the parents may be entitled to tuition reimbursement.  But must parents first place the child in a public school setting, even if it is inappropriate, to be reimbursed for the costs of the private placement? By affirming this decision the Supreme Court, has not said that they must, but we should monitor to see what happens in the Frank G v. Board of Education of Hyde Park case.

For a better understanding of the legal arguements it might be useful to read the parent’s appeal brief and the school district’s brief.

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7 Responses

  1. I think you are too quick to say that the parents are “entitled” to reimbursement after this decision. Because the Supreme Court came to a tie, they are required to affirm the lower court’s holding. However, that is not the same as reaching a decision with a majority on one side or the other. Until the SC hears another case with the same issue, and comes out with a majority opinion, no precedent has been set (outside of the Second Circuit). A tie in the Supreme Court, with no illustrative opinion, is no better than the Court not hearing the case at all.

  2. Kristine,

    Thanks and I don’t disagree with your point. Yesterday, I didn’t have time to comment fully (but I should have) on the impact on the 4 to 4 split in the Court and the fact that as a result the case does not set precedent. I will be updating my post to discuss this point. I also find this case interesting in that it’s being viewed as a unilateral placement by the parents, which was true at the outset, but it seems to me that once the school district accepted the placement back in 1997 and again in 1998 it became the district’s placement. The student was enrolled in the school district but placed in a private program. The student did receive services under the authoriity of the school district for two school years, he just didn’t receive them in a public school setting. Again, thanks for your comments!

  3. I don’t understand why Gilbert is considered a child who has not recieved special education services from the school district. The district paid for private placement for two years. They were providing services. He wasn’t receiving services in the public schools, but the public school district was providing them. They were outsourcing his services.

    Here is what I see when I look at the summaries. Child recieved special education services from district in 97-98 and 98-99 in a private placement. School district decided it wanted to change placement. Parents disagreed. Law suit. Can you explain what I have missed and why Gilbert is considered a child who has not previously recieved sped services from the district?

  4. Kate,

    I agree that Gilbert should be considered a child who has received special education services from the school district. The district chose not to oppose the private placement for two school years. The relevant statute authorizes tuition reimbursement to the parents of a child with a disability “who previously received special education and related services under the authority of the public agency…if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child…”I think that is the case here. But the school district seems to be argueing, among other things,that the plain meaning of the words “under the authority of the public agency” to refer to children who received services while actually in the public school system. I have added links to the briefs of the parties to my post above to help better understand this case.

  5. Hi,
    My question about the NYC and Gilbert case is whether or not this is a case of class discrimination. I read that the parent in this matter is a former owner (?) of Viacom. First, this allows the parent to go all the way to the Supreme Court,which is fine by me, but rather that all the players knew who they were dealing with and this subtly affected the outcome. I guess my real question is whether a middle class family would have gotten the same outcome.

  6. Hi Patricia and thanks of your comment. From what I understand, it is true that the parent in the Gilbert case had significant resources to pursue the case. I also think it is true that many middle income families might not be able to afford to litigate a special education case on behalf of their child. But, if a middle class family was financially able to take a case to the Supreme Court, I think they would have gotten the same outcome.

  7. […] will be heard April 28th. The Court had previously heard a similar case in 2007(see my post Supreme Court Affirms Tuition Reimbursement for Private School Placement). In that case Justice Kennedy recused himself, and the other justices affirmed by a four to four […]

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