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.