Argument Preview: Board of Education of New York v. Tom F.

Argument Preview

By Chastity E. Bedonie

Background

Congress enacted the Individuals with Disabilities Education Act (“IDEA”) “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”). Under the IDEA, each student with a disability must receive an individualized education plan (“IEP”) that addresses his or her unique educational needs. While parents help create an IEP, they can also reject a proposed IEP by filing a complaint with the state or local education agency. Once state-law administrative processes are exhausted, an aggrieved party may sue in either state or federal court.

In Burlington v. Department of Education of Massachusetts, the Supreme Court held that 20 U.S.C. § 1415 of the IDEA granted courts broad discretion to award equitable relief to the parents of a child with disabilities. Even when parents unilaterally remove their child from public school, parents may receive tuition reimbursement for the cost of a private school as long as a court determines that: (1) the IEP calling for a child’s placement in a public school is inappropriate; (2) the private placement desired by the parent is proper under IDEA; and, (3) equitable considerations favor reimbursement. Moreover, the Court held, such equitable relief is appropriate because the review process is time consuming; otherwise, parents who objected to an IEP would be required to choose between allowing the child’s education to continue with an inappropriate IEP or paying for what they consider an appropriate placement.

In 1997, Congress amended the IDEA. Among other things, it revised Section 1412(a)(10)(C) to authorize reimbursement for private school tuition when a public agency fails to provide FAPE. The statute now provides, in relevant part (with emphases added) that

“[i]f the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment”.

Gilbert F., the son of respondent Tom F., was born in 1989. He began kindergarten at Stephen Gaynor School, a private school, in 1995. In 1996, the New York City Board of Education’s Committee on Special Education (“CSE”) evaluated Gilbert and classified him as learning disabled. For both the 1997-1998 and the 1998-1999 school years, the CSE issued an IEP for Gilbert, but Tom F. rejected both IEPs as inappropriate and continued Gilbert’s placement at Gaynor. He also sought and received tuition reimbursement for both school years.

For the 1999-2000 school year, the CSE issued another IEP, which recommended that Gilbert receive special education services at the New York City Lower Lab School for Gifted Education, a public school. Tom F. again rejected the placement, continued Gilbert’s placement at Gaynor, and requested $21,819 in tuition reimbursement for the school year. This time, however, the Board declined the request. On April 6, 2001, an Impartial Hearing Officer (“IHO”) ordered the school board to reimburse Tom F., a decision which the State Education Department (“SRO”) upheld on appeal.

The Board then filed this suit in the U.S. District Court for the Southern District of New York, which reversed the SRO’s decision. In so doing, the district court relied on Greenland School District v. Amy N., in which the First Circuit held that , under the statute, tuition reimbursement is only available to children who previously received special education services from a public agency. In the district court’s view, Tom F. was thus a simple matter of statutory interpretation. It found “ no ambiguity in the statutory language”; rather, the “clear implication of the plain language . . . is that where a child has not previously received special education from a public agency, there is no authority to reimburse the tuition expenses arising from a parent’s placement of the child in private school.”

Tom F. appealed to the Second Circuit, which vacated and remanded the district court’s decision in light of its decision in Frank G. v. Board of Education, which also involved a request for tuition reimbursement by parents whose child had not previously received special education services from the public agency. The Second Circuit held in that case, however, that the “terms of the statute are ambiguous” because the plain language is capable of more than one meaning. Emphasizing that, as the Supreme Court made clear in Burlington, Section 1415 authorizes courts to “grant such relief as [they] determine[] is appropriate” when a public agency fails to provide FAPE, the Second Circuit held that the IDEA does not “establish a threshold requirement that a disabled child must have previously received public special education and related services . . . to be eligible for” tuition reimbursement.

Six months before the Second Circuit rendered its decision in Frank G., the Eleventh Circuit decided M.M. v. School Board of Miami-Dade County Florida, in which it held that, under Section 1412(a)(10)(C)(ii), reimbursement cannot be denied solely because the child did not previously receive special education services from a public agency. The Eleventh Circuit reasoned that requiring parents to accept an inadequate IEP to preserve their right to reimbursement runs contrary to the rights recognized in Burlington and its progeny.

Petition for Certiorari

Following the Second Circuit’s decision to vacate and remand Tom. F., the Board filed a petition for certiorari in which it argued that the Court should grant certiorari to resolve the circuit split regarding the interpretation of Section 1412(a)(10)(C)(ii). The Board also argued that the Second Circuit’s decision directly conflicts with the plain language of the statute, which does not explicitly authorize tuition reimbursement in situations where a child has not previously received special education or related services from a public agency. Third, the Board asserted that because Congress passed the IDEA pursuant to the Spending Clause, any conditions that attach to a state’s acceptance of federal funds must be unambiguously stated, and this requirement is inconsistent with the Second Circuit’s decision in Frank G. ‘

In opposition, Tom F. contended that a procedural defect weighed in favor of denying certiorari, stating that the Second Circuit’s decision in Tom F. was a summary judgment order with non-precedential effect; thus, because courts cannot rely on the decision a circuit conflict does not exist. Additionally, he argued, the Second Circuit’s holding is consistent with Burlington, which held that courts have broad discretion to order tuition reimbursement for children with disabilities who have not been provided with FAPE. To hold otherwise would require parents, who objected to an IEP, to choose between allowing the child’s education to continue with an inappropriate IEP or paying for what they consider an appropriate placement. This situation was specifically rejected by the Court in Burlington.

In any event, even without the procedural defect, there is no circuit split because the both the Second Circuit and Eleventh Circuit decisions are consistent in holding that children with disabilities, who are denied FAPE, are not barred from private school tuition reimbursement because they never attended a public school. And Frank G. does not conflict with the First Circuit in Amy N. for two reasons. First, the Board’s argument in support of a circuit split relied on dicta in Amy N., and the First Circuit’s reasoning in Amy N. turned on the parent’s failure to notify the school district that their child required special education services, rather than the child’s attendance at a public school. By contrast, notice was not an issue in Tom F. or Frank G.

Tom F. also argued that deference should be given to commentary by the U.S. Department of Education (published in the Federal Register following IDEA’s 1997 and 2004 amendments) allowing tuition reimbursement to children who have not previously received special education or related services from a public agency. According to the commentary, tuition reimbursement authorized by Section 1415 is independent of the relief in Section 1412, which applies to children who previously received special education and related services from a public agency.

Finally, Tom F. contended that the Board waived the Spending Clause argument by failing to raise it in the lower courts.

The Supreme Court granted certiorari on February 26, 2007. ‘

Merits Briefs

In its brief on the merits, the Board first argued that the plain language of Section 1412(a)(10)(C)(ii) creates a “statutory threshold” for awarding tuition reimbursement – i.e., to be eligible, a child must have first received special education services from a public agency. Congress could have explicitly stated that parents are eligible for tuition reimbursement even when the child has not met the condition, but it opted not to. Consistent with basic canons of statutory construction, Section 1412(a)(10)(C)(ii) “should properly be viewed as limiting the relief that may be granted” by Section 1415; otherwise, “Congress enacted a provision with no practical effect.”

The Board acknowledged that the purpose of IDEA is to provide child with disabilities access to FAPE, but that the statute does not require states to provide FAPE to every child. Children whose parents voluntarily enroll them in private school, are not entitled to FAPE at public expense. Instead, the type of service provided and the cost of those services are subject to certain limitations. In short, states have different obligations under IDEA to students enrolled in private school and students enrolled in public school.

The Board further argued that Burlington did not address facts similar to Tom F.’s case. Prior to placement in a private school, the student in Burlington received special education and related services from a public school. Hence, Burlington should be limited to its factual scenario and does not apply when a student has not previously received special education or related services from a public agency.

The Board also contended that deference should not be granted to commentary from the Department of Education (published in the Federal Register following IDEA’s 1997 and 2004 amendments), which indicates that reimbursement is allowed in cases in which the child has not previously received special education or related services from a public agency. The Board maintains the statute is clear, thus Chevron deference is inapplicable; and even if the statute were ambiguous the Department of Education’s interpretation is unreasonable because it contains no analysis of the “previously received” language.

Finally, the Board argued that failing to condition reimbursements on a child having previously received special education services from a public agency would have a potentially enormous economic impact on states and would moreover violate the Spending Clause of the U.S. Constitution, which requires that states receive clear notice of their obligations.

Tom F. countered that the IDEA neither expressly limits reimbursement only to parents whose child received special education services from a public agency nor prohibits reimbursement to parents whose child has not received special education services from a public agency. When it amended the IDEA in 1997, Congress codified existing law as interpreted by Burlington and its progeny. Under Burlington, Section 1415 authorizes courts to award reimbursement to parents when: (1) the IEP is inappropriate; (2) the private school placement is appropriate; and when (3) equitable considerations favor reimbursement. Neither the statute nor its legislative history reveal that Congress intended Section 1412(a)(10)(C)(ii) to limit the remedies available under Section 1415 or to require a “try-out” period before granting reimbursement. Tom F. argued that the Board’s interpretation of Section 1412(a)(10)(C)(ii) would change existing law sub silentio by adding a fourth requirement to Burlington: a “try-out” period. He noted that Burlington authorized reimbursement as a remedy to avoid forcing a “Hobson’s choice” on parents – either accept an inappropriate IEP, which may be detrimental to their child, or pay for what they may consider appropriate placement. Requiring a “try-out” period would force parents to make precisely such a choice. Tom F. also argued that withholding reimbursement when a public agency has not provided FAPE violates the primary purpose of the IDEA, which is to provide students with disabilities a free and appropriate education. Finally, Tom F. claimed that the Board has waived the Spending Clause argument because the argument was not raised in the lower courts.

The U.S. filed an amicus brief supporting Tom F. It too argued that the 1997 amendments to the IDEA did not alter the courts’ broad discretion to award tuition reimbursement. Such discretion is, according to the U.S., a pre-existing remedy – derived from Burlington and its progeny – that Congress neither explicitly nor impliedly changed with the 1997 amendment. Rather, Congress codified the most common scenario in which tuition reimbursement is sought – in situations in which the child has previously received special education or related services from a public agency. Moreover, to exclude tuition reimbursement to one class of parents would thwart IDEA’s express purpose, which is to guarantee a FAPE to all children with disabilities. In any event, the U.S. contends, the Court should defer to the Department of Education commentary, which made clear that the broad authority to grant appropriate relief under Section1415 is “independent” of the authority to grant relief under Section 1412(a)(10)(C)(ii).