Board of Education of the City of New York v. Tom F.

The Individuals with Disabilities Education Act (“IDEA”)

The IDEA, originally enacted in 1970, aims to provide all children with disabilities between the ages of 3 and 21 a “free appropriate public education” (“FAPE”). In making federal grants for such education contingent upon states’ compliance with a series of procedures, IDEA imposes upon local school boards strict requirements designed to ensure that all disabled children receive FAPE while affording procedural safeguards to parents.

To the extent possible, states are required to use educational programs that integrate disabled children with non-disabled children and to discourage the removal of children with disabilities from a “regular educational environment.” If a public agency elects to place disabled children in private school, the agency bears the tuition cost of such placement. However, if a parent refuses agency-provided FAPE and opts instead to enroll the disabled child in private school, the state is not obligated to pay for that child’s education.

Tuition Reimbursement Under the IDEA

In Burlington School Committee v. Massachusetts Board of Education, the Supreme Court held that the statutory predecessor to the IDEA authorized a reviewing court to order the school system to reimburse parents who unilaterally enrolled their learning-disabled child in private school, so long as the court determined the parents’ placement to have appropriately fulfilled the program’s goals. The Court reasoned that absent the availability of retroactive reimbursement, parents awaiting a decision on appeal of the proposed “individualized education program” (“IEP”) would face two choices in contravention of the principle of FAPE: either continuing their child’s potentially inappropriate placement pending a lengthy appeal process, or having to pay out of pocket for any tuition costs incurred even if a reviewing court ultimately deems their new placement to have been proper.

The 1997 amendments to the IDEA, in further delineating the rights of disabled children and their parents and the obligations of local school systems, addressed this statutory gap by adding 20 U.S.C. § 1412(a)(10)(C)(ii), the provision here at issue. Under this provision, courts may require an educational agency to reimburse parents for the cost of private school tuition if the unilateral enrollment of a disabled child “who previously received special education and related services under the authority of a public agency” is adjudged to have been proper in light of the agency’s failure to offer FAPE. In a 2004 decision, the First Circuit construed this amended provision to restrict tuition reimbursement to children who had previously received “special education and related services” while enrolled in public school, or “perhaps [to] those who at least timely requested such services while the child is in public school.”

Frank G. v. Board of Education of Hyde Park

In the present case, the Second Circuit based its decision to vacate and remand the district court’s reversal of the reimbursement award on its earlier opinion in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir. 2006). Frank G. similarly involved the availability of a reimbursement award for the parents of a learning disabled child who had not previously received special education from a public agency after the parents unilaterally enrolled the child in private school while appealing an allegedly inappropriate IEP placement.

Frank G. departed from the First Circuit’s strict construction of 20 U.S.C. § 1412(a)(10)(C)(ii) in Greenland by stating a two-pronged test for parents’ entitlement to private school tuition reimbursement, based in part on principles articulated in Burlington: “(1) was the IEP proposed by the school district inappropriate; (2) was the private placement appropriate to the child’s needs.” The court explained that the private school placement need not meet the specific FAPE requirements; rather, it is appropriate so long as it is “reasonably calculated to enable the child to receive educational benefits.” Applying this standard, and noting the school district’s concession that its IEP was inappropriate, the court found the private school placement to be appropriate as indicated by the nature of the instruction and the child’s resulting improvement in test scores.

In response to the Board of Education’s defense that the language of 20 U.S.C. § 1412(a)(10)(C)(ii) precludes reimbursement if the child has never previously received agency-provided special education, the court asserted that the equitable basis described in Burlington for enabling a court to award “appropriate” relief did not change as a result of the 1997 amendments; rather, it remains codified at 20 U.S.C. § 1415(i)(2)(C)(iii). The court concluded that a purposive reading of the IDEA in light of § 1412(a)(10)(C)(ii)’s ambiguous wording reveals that because of the broad discretion the IDEA confers on a district court to grant “appropriate” relief, reimbursement of private school tuition is still possible based on an agency’s failure to provide FAPE even if the child received no prior special education.

Board of Education of the City School District of the City of New York’s Arguments

In the present case, the Board of Education contends that the plain language of IDEA pertaining to the reimbursement question at issue is clear, and should be strictly construed to prohibit tuition reimbursement for students who have not received previous special education and related services from a public agency. The Second Circuit’s reading, the argument goes, works to nullify the statutory language that Congress specifically intended. By adding the requirement that a child must have received previous special education under the authority of a public agency to be eligible for a tuition reimbursement, Congress was specifically restricting tuition reimbursements for unilateral parental placement to those claims that passed this threshold requirement.

Furthermore, the Board argues that the Second Circuit’s decision undermines specific policy considerations of Congress. One specific purpose of the 1997 Amendment, the Board contends, was to control government expenditures by eliminating financial incentives to refer children inappropriately to special education programs at private schools. The Board additionally claims that Congress intended the Act as a way of “mainstreaming” handicapped children into an environment with non-handicapped children whenever possible. To this end, the Board argues that allowing tuition reimbursement for private school education without first giving public school education a try specifically undermines Congress’ policy considerations in passing the 1997 IDEA amendment.

The Board additionally argues that the Second Circuit’s holding is in conflict with the Spending Cause. IDEA was enacted pursuant to the Spending Clause, the argument goes, therefore Congress must provide clear notice to states of the conditions under which they are accepting federal funds. As 20 U.S.C. § 1412(a)(10)(C)(ii) provides no clear notice of a requirement of reimbursing disabled children that are unilaterally placed in private schools, States could not have reasonably anticipated or accepted the “potentially enormous economic impact” of providing these reimbursements.

Tom F.’s Arguments

On behalf of Gilbert F., Tom F. argues that the plain language of IDEA does not contain any requirement that a child undergo a trial period at public school to be eligible for a private school tuition reimbursement. Rather, Tom F. asserts that the 1997 amendments only require that parents cooperate with the school districts’ attempt to provide FAPE. Because he fully cooperated with the development of an IEP, Tom F. argues he was fully within his rights under IDEA to place his child in private school education and challenge the appropriateness of the IEP pursuant to a tuition reimbursement.

Tom F. further argues that the Board of Education’s interpretation is contrary to the purpose of IDEA. First of all, requiring parents to give public education a try undermines their right to challenge the adequacy of the IEP provided, rendering IEP process that is the “core of the statute” meaningless. Second, the statute was meant to avoid placing parents in the situation that the Board’s interpretation presents: a choice between sacrificing their children’s appropriate education or their right to tuition.

Finally, Tom F. rebuts the Board’s Spending Clause argument by claiming that even if the IDEA statute itself does not provide notice, that the Court’s decision in Burlington placed school boards on clear notice that they were potentially liable for private school tuition reimbursements for unilateral parental placement. Therefore, no reasonable official could possibly plead ignorance to his liability for a tuition reimbursement when the school district’s IEP is inappropriate and has not provided the parents with FAPE.