On April 28, 2009, the Supreme Court will hear oral argument in Forest Grove v. T.A. The issue is whether the school district can be required under the IDEA to reimburse parents for private school tuition when the school had not previously recognized the student’s need for special education.
The case involves a family in Oregon who withdrew their son from the Forest Grove School District because they believed he was not receiving an appropriate education. During his freshman year the student was referred for an evaluation to determine if he had a learning disability under the IDEA. The team, however, determined that he did not have a learning disability and was ineligible for special education services. At the time his parents did not disagree with that determination. During his sophomore year the student began having difficulties and eventually ran away from home. As a result he was taken to see a psychologist who diagnosed him as having ADHD, depression, math disorder, and cannabis abuse. The psychologist also recommended that he attend a residential program. Thus, his parents enrolled him in Mount Bachelor Academy, a private residential school, and the parents also requested a hearing to require that the Forest Grove School District evaluate him for special education eligibility.
As a result, the school district’s multi-disciplinary team determined that the student had ADHD and depression. They did not, however, find him eligible for special education services under the IDEA because the team concluded his ADHD and depression did not have a severe enough effect on his educational performance.
This led to the parents requesting a due process hearing. The hearing officer ruled that the boy was eligible for services under the IDEA and Section 504; that the school district had not offered an appropriate program; and that the school district was responsible for the costs of the private school, Mount Bachelor Academy. The school district appealed to U.S. District Court, arguing that tuition reimbursement was inappropriate because the student had been unilaterally withdrawn from school without notice to the school district and he had never received special education services from the district. The District Court ruled for the school district, but the 9th Circuit Court of Appeals ruled for the parents and reinstated the hearing officer’s decision.
The Supreme Court accepted the case for review and oral argument 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 vote a decision allowing a father repayment of private school tuition.
In Forest Grove v T.L. the issue that the Supreme Court is deciding is:
Whether the IDEA permits an award of private-school tuition reimbursement when a child with a disability has been denied a free appropriate public education, but has not “previously received special education and related services under the authority of a public agency,”
Of course the school district and parents have filed briefs before the Court. But a number of entities have filed friend of the court briefs. Briefs in support of the parents include: the U.S. Department of Justice and the National Disability Rights Network. Briefs in support of the school district include: The New York School Boards Association and the National School Boards Association.
Filed under: Individuals with Disabilities Education Act, Special Education Law, children with disabilities
Advocacy groups and parents of some special education students contend that “forcing them to try public schools first could force children, ESPECIALLY POOR ONES, to spend time in an undesirable situation before getting the help they need.”
I disagree parents of poor and working middle class students don’t make it to private education at public expense. Unless their disabilities are very severe, otherwise they have few options. In fact they don’t have the thousands of dollars needed to pay for assessment, expert witnesses and attorney fees.
This case and statements that “poor students” will be affected is just a ploy by these so-called advocacy groups to push their own agenda.
The family in this case a teenager boy diagnosed with ADHD placed their child in a private school at a cost of $ 5, 200-a-month a total of $65,000 in private tuition. How many poor and working middle class Americans have $ 5, 200-a-month to spare?
Obviously it is unrealistic and impossible that working middle class can make this sort of investment.
“Justice David Souter is concerned that legal appeals in such cases could drag out for years while a student’s education languishes?
“You get into court and it can go on a long time,” Souter said. “You can’t wait years” when a student’s education is at stake.
Well, if the United States Supreme Court is so concerned about special education cases taking a long time they sure don’t act like it. They routinely dismiss special education cases with merits. In fact the Supreme Court recently dismissed dozens of cases of BRUTALITY AGAINST SPECIAL EDUCATION STUDENTS in public schools. These cases have gone thorough the courts for 6-10 years. In the meantime the Supreme Court and all these so called advocated turned the other way. In fact most parents cannot find attorneys and have to file on their own. Which cases always end up in the appellate and the Supreme Court because they are continually DENIAL ACCESS to the COURTS.
Most of the cases in federal courts including the U.S. Supreme Court are bogged down with illegal immigration, drug trafficking across the border and criminal crimes. It is so ironic that the United States Supreme Court can hear the case of an illegal immigrant who stole someone else identity but refuses to her civil meritorious cases and question of law (Flores-Figueroa v. U.S., 08-108).
This case above 20 immigrant right groups paid with our tax dollars to represent Flores. Yet I could not get a single organization to represent me for almost a decade. Most of these organizations are lobbyists.
The Ninth Circuit Court has no respect for pro se litigants whatsoever.
Since the year 2000 I contacted so many non-profit organizations for assistance and received no assistance. In fact I would not be surprised if the 20 listed organizations were the same one I contacted for assistance.
I filed a case in federal court in pro se in an IDEA case (Individual with Disabilities Ed. Act.) I was dismissed because I was not a licensed attorney to represent my child. I appealed to the Ninth Circuit Court and my case was used in the oral arguments in the U.S. Supreme Court Winkelman Certiorari. Well, the Supreme Court ruled in favor or the Winkelman’s. When my case came up for appeal over 16-months later (after the Winkelman’s ruling) in the 9th circuit court. It was papered with the other pro se cases in the “NINTH CIRCUIT PRO SE TASK FORCE.” The Ninth Circuit judges who papered my case were B. FLETCHER, THOMAS, and WARDLAW.
Not only did I not have an opportunity for my case to be heard by a three-judge panel. My case was dismissed in an unpublished Memorandum with cases that were totally irrelevant to my appeal by Circuit Judges B. FLETCHER, THOMAS, and WARDLAW. To make matters worst the 9th Circuit panel disregarded the U.S. Supreme Court Winkelman’s decision in its entirety. I filed a Certiorari with the United States Supreme Court and on the day my case came up all of the cases on the docket were dismissed. Yes, the Supreme Court does not look over cases either [The U.S. Supreme Court receives over 7,500 requests for certiorari per year and only accepts less than 70 cases.]
The reason why I am writing this is that I honestly lost faith and respect for my own government.
I am ashamed to be an American.
Thanks for your comment. I am sorry your cases have not been successful.
Hello,
I have a question I was hoping you could help me with. Under the IDEA parents who send their children to “for-profit” schools do not qualify for tuition reimbursement, as opposed to “not for profit” schools. I was wondering if the same applies in section 504 of the rehab act.
Thanks a lot!
Hi Sheela and thank you for your comment and excellant question. I don’t think its entirely clear that parents who send their children to private for profit schools may not be entitled to tuition reimbursement. There are three situations invoving private school children. (1) Parentally placed private school children who are entitled to an “equitable share” of IDEA funds under 34 CFR 300.130 to 144. These regulations refer specifically to the definition of “elementary school” at 34 CFR 300.13 and “secondary schools” at 300.36. Both regulations define the schools as non profits.(2) Children placed by school districts in private schools or facilities as a means of providing special education and related services.These regulations (300.144 to 148 do not refer to private schools or facilities as non profits. So, if a school district places a child in a private for profit school, the district pays the tuition.(3) Children placed by their parents in private schools where FAPE is at issue.(34 CFR 300.148).There the regulations refer to placement in private preschool, elementary, or secondary schools without referring to the definition of elementary and secondary schools as nonprofits at 300.13.
So, it’s not clear to me that tuition reimbursement is clearly off limits for placement in a for profit private school. I’m sure a school district would take the position that reimbursement is off limts.
Regarding 504, I have found a judicial decision out of New Jersey approving tuition reimbursement to the parents of a child with ADHD under a 504 plan. See Bouragh of Palmyra Bd of Education v. F.C., 2 F. Supp. 2d 637, (D.NJ 1998)and 28 IDELR 12. There the parents disagreed with the school district’s 504 Plan and unilaterally placed their son at a private school pending the outcome of the 504 hearing. The hearing officer ruled for the parents, that the district’s 504 Plan was inadequate, and ordered the parents to be reimbursed for the private school tuition. I don’t think the case involved a for profit school and that issue was not raised. I have not seen the for profit issue discussed elsewhere, so I do not have a specific answer to that question either. I am sorry I am not able to provide a more definitive answer.