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SPECIAL EDUCATION ALERT: Forest Grove School District v. T.A.

On June 22, 2009, the Supreme Court issued a decision in Forest Grove School District v. T.A., a case about private school tuition reimbursement for a child who was found ineligible and never received special education services from the public school. The issue before the Court was whether parents who unilaterally enroll their disabled child in a private school are entitled to tuition reimbursement if the child never received special education from the public school district.

There was a split among circuits on this question: “whether 20 U.S.C. § 1412(a)(10)(C) creates a categorical bar to reimbursement of private school tuition for students who have not ‘previously received special education and related services.’” The First Circuit held that the statute imposes a categorical bar (Greenland School District v. Amy N., 358 F.3d 150, 159-60 (1st Cir. 2004). The Second and Eleventh Circuits held otherwise. (Frank G. v. Bd. of Educ., 459 F.3d 356, 367-76 (2d Cir. 2006), cert. denied, 128 S. Ct. 436 (2007); M.M. ex rel. C.M. v. Sch. Bd., 437 F.3d 1085, 1098-99 (11th Cir. 2006)).

In its decision, the Supreme Court held that:

". . . IDEA authorizes [tuition] reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school."

Background of the Case
Despite a long history of ADHD, severe depression, substance abuse problems, and failing grades, Forest Grove School District determined that the student was not eligible for special education services under IDEA, nor for protections under Section 504. His parents then enrolled him in a private school and sought tuition reimbursement from Forest Grove.

Concluding that the School District had failed to provide respondent a “free appropriate public education” as required by IDEA, §1412(a)(1)(A), and that respondent’s private-school placement was appropriate, the hearing officer ordered the School District to reimburse his parents for his private school tuition. The District Court set aside the award, holding that the IDEA Amendments of 1997 (Amendments) categorically bar reimbursement unless a child has “previously received special education or related services under the [school’s] authority.” §1412(a)(10)(C)(ii). Reversing, the Ninth Circuit concluded that the Amendments did not diminish the authority of courts to grant reimbursement as “appropriate” relief pursuant to §1415(i)(2)(C)(iii). The Court of Appeals held that:

"... a student who never received special education and related services from a school district nevertheless may recover reimbursement for the costs of private school education. We conclude that such a student is not barred as a matter of law from receiving reimbursement. In the IDEA, Congress conferred broad discretion on the courts to provide appropriate equitable relief, including reimbursement for attendance at a private school."

Forest Grove appealed the adverse decision to the U. S. Supreme Court, and the Court affirmed the Ninth Circuit’s decision.

Significance of the Decision
Many school districts have been less concerned about potential due process claims from those students who had not previously received special education services. As Forest Grove makes clear, school districts need to understand that they are exposed to liability for those students. When a student is found to be ineligible for special education it is imperative that the school district has completed its evaluation in a substantively appropriate manner as well as a procedurally appropriate manner. The failure to do so can expose a district to significant liability.

As always, if you need assistance to ensure that your special education evaluations are procedurally and substantively accurate, our School Law Group has the experience and knowledge to support you.

This alert was written by Ronald S. Stadler.