Court: Public must pay for private special ed

updated 4:34 p.m. ET June 22, 2009

WASHINGTON - The Supreme Court on Monday shifted the landscape for students with learning disabilities, saying parents can in many instances bypass public school special education programs and be reimbursed for private school tuition instead.

The court ruled 6-3 in favor of a teenage boy from Oregon whose parents sought to force their local public school district to pay the $5,200 a month it cost to send their son to a private school.

Under the Individuals with Disabilities Education Act, the nation's special education students are entitled to a "free and appropriate public education." Federal law calls for school districts to reimburse students or their families for education costs when public schools do not have services that address or fulfill the students' needs.

But schools have argued that the law says parents of special education students must give public special education programs a chance before seeking reimbursement for private school tuition. The Forest Grove, Ore., School District said the parents were ineligible for reimbursement because their son had not been in public special education classes.

Court rules in family's favor
A majority at the Supreme Court disagreed.

"We conclude that IDEA authorizes reimbursement for the cost of 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," said Justice John Paul Stevens, who wrote the majority opinion.

In the case before the Supreme Court, the family of a teenage Oregon boy diagnosed with attention deficit hyperactivity disorder — who was identified only as T.A. — sued the school district, saying the school did not properly address the student's learning problems. The family is seeking reimbursement for the student's tuition, which cost $5,200 a month. The family paid a total of $65,000 in private tuition.

In its appeal, the Forest Grove School District said students should be forced to at least give public special education programs a try before seeking reimbursement for private tuition. If not, lawyers argue, parents would bypass public schools and go directly to private school — and then ask for reimbursement from school systems already burdened by ever-increasing costs.

School districts "can avoid any liability for tuition reimbursement by providing a free appropriate public education to a child with a disability," said lawyer David Salmons, who argued the case for T.A. But "if they fail to do that, they may be responsible for private school tuition if the parents can show that it's an appropriate case."

Parents' reimbursement is pending
The court's decision does not require reimbursement, but Stevens said school officials "must consider all relevant factors, including the notice provided by parents and the school district's opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child's private school education is warranted."

The federal courts must now determine whether T.A's parents will get his private school fees reimbursed from public school coffers. "The parents will now have an opportunity, which they have been seeking for some time, to show that reimbursement was an appropriate form of relief in this case," Salmons said.

Salmons said T.A. has now graduated high school and is pursuing a college degree.

Justice David Souter, Antonin Scalia and Clarence Thomas dissented from the court's majority opinion.

"Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools," Souter said in the dissent.

This is the court's second attempt at resolving this issue. The high court split 4-4 on a similar case from New York City two years ago. Justice Anthony Kennedy recused himself in the New York case but was among those who ruled on the Oregon case.

Nationwide, the number of special education students placed in private schools at public expense has not changed significantly over the last two decades, Justice Department lawyers said, citing statistics from the Education Department. Just under 67,000 pupils were in private placements in 2007 — just 1.1 percent of the country's nearly 6 million special education students.

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