Argument Preview: Forest Grove School District v. TA

Stanford student Tiffany Cartwright previews tomorrow’s argument in Forest Grove School District v. TA (08-305).

At issue in Tuesday’s first case is whether parents of a student who has never previously received special education services from a school district may be eligible under the Individuals with Disabilities Education Act for reimbursement of private school tuition. The Court previously granted certiorari to resolve this question in Board of Education of New York v. Tom F., but affirmed the opinion below by an equally divided vote after Justice Kennedy recused himself from the case.

The Individuals with Disabilities Education Act (IDEA) seeks to ensure that all children with disabilities receive a “free appropriate public education.” School districts that fail to provide such an education can be ordered to reimburse a child and his parents for the cost of private education. Prior to 1997, courts based these reimbursement orders on the broad language of 20 U.S.C. §1415(i)(2)(C), which provides that in suits under the IDEA, a court “shall grant such relief as [it] determines is appropriate”; in School Committee of the Town of Burlington v. Department of Education, the Court construed this language to authorize reimbursement for parents who unilaterally placed their child in private school when the services provided by the public school were inadequate.

In 1997, Congress amended the IDEA and specifically addressed private school reimbursement in 20 U.S.C. §1412(a)(10)(C). Clause (ii) of that section provides (as relevant here) that a family can be reimbursed when a child with a disability has “previously received special education and related services” from a school district. In this case, the Court will decide whether that language precludes reimbursement for students who have never received special education services.

Respondent T.A. is a former student of petitioner Forest Grove School District. He attended Forest Grove public schools from kindergarten until halfway through his junior year in high school, when his parents enrolled him in a residential private school. While in school, T.A. experienced difficulty paying attention and completing schoolwork, but a 2001 evaluation concluded that he did not have any learning disabilities. Although school officials also suspected that he had Attention Deficit Hyperactivity Disorder (“ADHD”), he was not evaluated for that condition, and his parents were not informed of the school’s suspicions.

In 2003, T.A.’s parents took him to a psychologist, who diagnosed him with ADHD, depression, math disorder, and cannabis abuse and recommended that he be placed in a residential program. His parents followed that advice and removed T.A. from Forest Grove.

T.A.’s parents then hired a lawyer and requested an administrative hearing pursuant to the IDEA. Before the hearing, Forest Grove again evaluated T.A. Although the evaluators agreed with the psychologist’s diagnoses, they nonetheless concluded that he was not eligible under the IDEA because those diagnoses did not have a severe effect on his educational performance. In the administrative hearing, the Hearing Officer rejected the school’s conclusions, instead holding that T.A. was disabled, that he was eligible for special education under the IDEA, that Forest Grove had failed to offer him a free appropriate public education (FAPE), and that he was entitled to reimbursement for the costs of his new private school.

Forest Grove appealed to the district court, which agreed with the Hearing Officer’s findings of fact – notably, that T.A. was disabled and thus entitled to special education – but held that T.A. was ineligible for reimbursement because he had not “previously received special education and related services” from Forest Grove.

T.A. appealed to the Ninth Circuit, which initially held the case pending the Supreme Court’s decision in Board of Education v. Tom F. The Ninth Circuit subsequently reversed. It held that the statutory requirements of Section 1412(a)(10)(C) simply don’t apply to children – such as T.A. – who have not previously received special education services, and that relief is still available pursuant to Section 1415(i)(2)(C), which authorizes general equitable relief. The panel emphasized that IDEA’s purpose is to provide all disabled children with a FAPE, and that creating a categorical bar for some children would be contrary to that purpose. Moreover, it reasoned, the district court’s reading of the statute would lead to “absurd results”: parents would be forced to wait for public school services before transferring their child “no matter how inappropriate” the public education, and a student who was incorrectly deemed not disabled would never receive services and therefore never be eligible for reimbursement.

In its petition for certiorari, Forest Grove School District presents two arguments (in addition to the cert. grant in Tom F.) for granting the writ. First, it notes that the circuits are split on the issue: three circuits (the Second, Ninth, and Eleventh) hold that reimbursement is still permitted for students such as T.A., while the First Circuit holds that prior receipt of special education services is a “threshold” requirement for reimbursement. Second, Forest Grove argues that the Ninth Circuit’s decision is wrong on the merits. Noting that the IDEA was enacted pursuant to the Spending Clause, Forest Grove argues that the statute does not provide “clear notice” that it is imposing an obligation to compensate parents whose children have not previously received special education services. Furthermore, Forest Grove contends, rules of statutory construction and the legislative history of the IDEA support its interpretation of the statute.

In opposing certiorari, T.A. first argues that this case is a poor vehicle for review of the question presented because there has been no final judgment in this case. Instead, the Ninth Circuit merely remanded the case to the district court, which has yet to determine whether or not T.A. has a disability and if so, if he is entitled to reimbursement under equitable principles. Second, T.A. contends that Forest Grove has overstated the nature of the circuit split. Third, T.A. notes both that Forest Grove failed to advance its Spending Clause argument in the lower courts and that the Spending Clause is in any event irrelevant as it involves a proper remedy for a violation of the IDEA; the only substantive obligation imposed on the states is to provide disabled students with a FAPE, and the statute provides clear notice for that. Finally, T.A. defends the decision of the Ninth Circuit, mostly on the basis of the goals of the IDEA and commentary by the Department of Education .

In its merits brief, Forest Grove advances two major arguments. First, it reiterates its Spending Clause argument: because the IDEA was enacted pursuant to Congress’s Spending Clause power, it must provide clear notice of any conditions that are attached to a state’s acceptance of federal funds. Here, however, the IDEA plainly prohibits reimbursement for students who have not previously received special education services. Forest Grove points to the plain text of the statute, noting that the titles of the relevant subsections make it clear that they apply to all students who are enrolled in a private school without the district’s consent, and that the text of the sections themselves make clear that reimbursement is only appropriate for a child “who previously received special education and related services.” This is the only provision of the IDEA that expressly authorizes tuition reimbursement, and Congress’s express action here suggests that it did not intend implicit authorization elsewhere in the statute. Moreover, the legislative history of the 1997 amendments indicates that Congress intended to limit the availability of tuition reimbursement, rather than add to or clarify what was already available. Finally, even if the IDEA does not clearly bar students such as T.A. from reimbursement, it is at most ambiguous, and the Spending Clause requires that any ambiguity be resolved in favor of the school district.

Forest Grove then addresses the rationales of the Ninth Circuit’s decision. First, it argues that the broad purpose of the IDEA—to ensure that all disabled children receive a FAPE—does not require reimbursement for T.A. Although that purpose is important, it cannot be promoted at the expense of all other considerations, especially when the 1997 amendments were intended to limit liability for tuition reimbursement. Second, the Ninth Circuit’s reliance on Burlington, which authorized tuition reimbursement prior to the 1997 amendments, is misplaced, as that decision was effectively superseded by the 1997 amendments and the student at issue in that case had received prior special education services. Third, commentary by the Department of Education is not entitled to deference because it is contrary to the clear language of the IDEA, exceeded the scope of the Department’s delegated authority, and contradicts the requirement of the Spending Clause that any obligation must be unambiguously imposed by the statute itself. Finally, Forest Grove disputes the Ninth Circuit’s prediction that “absurd results” would flow from the denial of reimbursement to students who had not previously received services. To the contrary, it argues, the Ninth Circuit’s decision creates “absurd results” by reducing the burden on parents who have not followed the standard IEP process and attempted to keep their children in public schools.

In his merits brief, T.A. first responds by asserting that the plain language of the IDEA permits tuition reimbursement whenever a school district fails to make a FAPE available. T.A. points to the first subsection in Section 1412(a)(10)(C), an express “safe harbor” provision which provides that tuition reimbursement is not required if a school district “made a free appropriate public education available to the child.” This express provision in subsection (C)(i), T.A. argues, precludes any “implied safe harbor” under (C)(ii), the subsection at issue in this case: if Congress had meant to create additional categorical bars to reimbursement it would have done so in (C)(i).

This reading of the statute – where the only categorical bar to reimbursement is found in (C)(i) – also harmonizes and gives meaning to all provisions of the IDEA, according to T.A. It does so by viewing (C)(i) as the “general rule” for tuition reimbursement, making reimbursement available in all cases except where the school district has provided a FAPE, and viewing (C)(ii) and (C)(iii) as governing the particular application of (C)(i). Subsection (C)(ii) identifies a particular class of cases that were of particular concern to Congress – cases in which there was already an ongoing relationship between parents and the school district providing services – and (C)(iii) provides limiting factors to ensure that such an ongoing relationship is not terminated prematurely. When a school district fails to make any services available in the first place, or even worse, fails to identify a student’s disability entirely, subsections (C)(ii) and (C)(iii) simply do not apply. It cannot be the case, T.A. emphasizes, that parents who attempt diligently to secure services for their child from a public school are then denied reimbursement if the school wrongfully denies them any services. This construction, T.A. argues, not only follows from the plain language of the statute but is consistent with the purpose and legislative history of the IDEA.

T.A. then briefly argues that the Department of Education has interpreted the IDEA in his favor, and that those interpretations are entitled to Chevron deference. Finally, and perhaps in an attempt to signal its lack of importance, T.A. addresses Forest Grove’s Spending Clause argument. After reiterating that this argument was not raised below, T.A. claims that no separate notice is required for tuition reimbursement because that obligation is inherent in the obligation to provide a FAPE. Furthermore, clear notice is provided by subsection (C)(i), which expressly provides that the only limitation on tuition reimbursement is where the district has actually provided a FAPE, and by the Department of Education’s commentary.