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

Oral arguments were held on October 1, 2007.

Arguing on behalf of the Board, attorney Leonard Koerner contended that when the Court decided Burlington, IDEA had no provisions addressing the relationship between children and private schools. Only in the 1997 amendments did Congress include such a provision in Section 1412. While this provision states that children in private schools are entitled to some federal funding, they are not entitled to FAPE; thus, Congress effectively recognized that children in private schools are entitled to fewer services than children in public schools.

Chief Justice Roberts asked Koerner whether the Court should defer to the Department of Education’s interpretation in its commentary if the Court finds the language is not ambiguous. Koerner responded that it should not, arguing that the interpretation is inconsistent with 34 C.F.R.§ 300.403 and that “Chevron deference requires notes and comments which are persuasive and analyzed.” Instead, the Department of Education’s comments only provide conclusive statements and “absolutely no analysis.”

Justice Alito asked why Congress would have adopted a scheme requiring parents to place their child in an inappropriate placement for very short periods of time – i.e., the “try-out” period cited by Tom F. and the U.S. Citing the rationale behind Burlington, Koerner stated that the scheme was enacted to remedy situations in which a child is subject to an extremely protracted process. Justice Ginsburg noted, however, that Burlington did not address the particular facts of this case – in which a child was never in public school. Koerner further argued that the statutory scheme promotes cooperation between the school board and the parents in developing an IEP. Following up, Justice Scalia stated that he thought Congress intended the scheme to exclude tuition reimbursement as “an option for people who had no desire to go to public school at all anyway.” Justice Alito asked why, if this was Congress’s purpose, are children not required to stay in public schools for a significant period of time, questioning whether the current scheme is pro forma.

In response, Koerner initially cited Section 1412(a)(10)(C)(iii), which requires that, prior to removing a child from a public school, parents must give 10-business-days notice to the school board expressing dissatisfaction with an IEP. Chief Justice Roberts pointed out, however, that it may take longer than 10 days to realize a program is inadequate. Koerner agreed and emphasized that the decisions are individual determinations. The statute merely requires that the child have been in the system and that parents cooperate with the program and provide 10-business-days notice.

Koerner also argued that adopting Tom F.’s interpretation would create a “perverse incentive to stay outside the system,” because parents, whose children have not previously received services from a public agency, would have to endure less of a bureaucratic process than children who have received services. The parents of children within the system would be subject to the requirements under Section 1412(a)(10)(C)(iii), namely notice and cooperation requirements, before obtaining review from an IHO; whereas the parents of children outside the system would not be. Disputing this assertion, Chief Justice Roberts and Justice Ginsberg pointed out that the parents carry the burden of proving an IEP is inadequate. More specifically, the Chief Justice stated it would be easier to show an IEP was inadequate by arguing “we tried, it didn’t work,” as opposed to “we never tried.” Justice Scalia countered that the Board would have the burden of proving the services the child would receive under their IEP are adequate compared to the services the child received in private school. ‘

Arguing for respondent Tom F., attorney Paul Gardephe contended that the statutory authority for granting tuition reimbursement, when a child has not previously received special education or related services from a public agency, derives from the requirement that school districts make FAPE available to a child – more specifically, Sections 1400(d)(1)(A) and 1412(A)(1) – and Section 1415(i)(2)(C)(3), which grants such relief as a court determines is appropriate. Congress did not intend Section 1415(a)(10)(C)(ii) to be the “exclusive vehicle by which tuition reimbursement could be obtained[]”; hence, Congress did not intend to overrule Burlington. Furthermore, Congress did not express any intent to override this remedy in either the 1997 amendment or its legislative history.

Justice Scalia countered by examining the plain language of Section 1415(a)(10)(C)(ii). In his view, “it is very clear” that the statute authorizes tuition reimbursement for private school and is “prefaced with a condition” that, to qualify for reimbursement, a child must have previously received special education or related services from a public agency. Gardephe responded that Section 1415(a)(10)(C)(ii) sets up Section 1415(a)(10)(C)(iii), giving it factual context to guide courts in granting equitable relief, but that Congress did not intend Section 1415(a)(10)(C)(ii) to be exclusive or exhaustive of the circumstances or factual context. As proof of this contention, he stated that Congress did not expressly use “only if” in this provision, which he contrasted with several provisions in the IDEA in which Congress specifically added “only if.”

Next, Gardephe posited that Section 1415(a)(10)(C)(ii) does not serve any meaningful purpose. He explained that parents could enroll their child in public school kindergarten for one day, which would satisfy Section 1415(a)(10)(C)(ii), then 5–10 years later the parents could still rely on that one day to qualify for tuition reimbursement. Justice Scalia noted this argument was not before the Court, but nonetheless disputed the example, stating that there needs to be a “temporal connection between the prior receipt and the enrollment[] . . . I don’t think you can go back 10 years.”

Argued on behalf of the United States in support of Tom F., Deputy Solicitor General Gregory Garre’s argument hinged on IDEA’s “fundamental requirement of providing” FAPE. He emphasized that requiring a parent to choose between an inappropriate placement, or paying for private school, was a scenario specifically rejected in Burlington”. Justice Scalia noted, however, that Burlington, which was decided in 1985, was decided under a different statute than the current case because Congress amended IDEA in 1997. Clarifying his statement, Garre explained that he was referring to the part of Burlington holding that FAPE is a fundamental requirement, and that no evidence exists in the legislative record of the 1997 amendments that Congress was “scaling back the fundamental mandate of the statute for school districts to provide [FAPE] for every child.”

According to Garre, school districts today hold all the cards in the IEP process, and a school board can avoid paying tuition reimbursement for private schools by providing FAPE “in the first place.” He also distinguished cases in which parents may qualify to receive tuition reimbursement and situations in which parents are entitled to receive tuition reimbursement. Courts, he asserted, differentiate between the two by deciding whether the parents are genuinely acting in good faith or are trying to game the system, and, at their discretion, courts can award or deny reimbursement claims.