As discussed in my previous post, last week the Supreme Court affirmed the Second Circuit Court of Appeals decision in Board of Education of the City of New York v Tom F. and Gilbert F. . In Tom F. and Gilbert F. the Second Circuit Court of Appeals had reversed a district court decision denying tuition reimbursment for a unilateral placement of a child in a private school, because the child had not first received special education services from the public school. The Second Circuit had made a decision in 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 tuition. The Hyde Park Board of Education had requested that the Supreme Court hear its appeal of that decision.
Although the Supreme Court affirmed the Second Circuit in Tom F. and Gilbert F. its decision was by a four to four vote ( Justice Kennedy recused himself), so it did not set a precedent on whether a student must first receive public school special education services in order for parents to be reimbursed for private school tuition. It was possible that if the Court agreed to hear the Frank G. appeal and issued a majority opinion, this issue might be clarified through a decision that set precedent. That is not the case, however, as the Supreme Court has now denied certiorari in Frank G. and will not hear that appeal.
So, while the Second Circuit decision in Tom F. and Gilbert F. has been affirmed and its decision in Frank G. will stand, we still do not have a decision that sets precedent on this issue outside of the jurisdiction of the Second Circuit Court of Appeals (Connecticut, New York, and Vermont). It is possible that if another circuit decides this issue it could come back to the Supreme Court later.