Supreme Court considers case about special education reimbursement

From The New York Times:

WASHINGTON — The Supreme Court heard arguments on April 28 about what parents must do to get taxpayers to pay for a disabled child’s special education at a private school.

With some specified exceptions, the Individuals With Disabilities Education Act, as amended in 1997, allows parents to receive reimbursement for a special education student’s private school tuition only if the child has previously received publicly financed special education services.

In Tuesday’s case, Forest Grove School District v. T.A., No.08-305, an Oregon school tested a child, referred to as T.A., and determined that he did not have a learning disability. His parents then sought a diagnosis elsewhere and were told he had attention deficit hyperactivity disorder.

They placed him in a private school and sued the public schools for reimbursement of tuition, claiming that by failing to diagnose his condition, the district had not fulfilled its obligation under the act to provide him a “free appropriate public education.”

During the oral argument, Justice John Paul Stevens suggested that an inability to force the school district to pay for private programs after it refused to find that a child had a learning disability might “create an incentive for the school board” to refuse to provide special education.

Chief Justice John G. Roberts Jr., however, suggested that the burden on families was relatively light. He noted that the law simply required that if the school did
propose an individual education plan for the student within the public system, parents give the plan a chance — often just for 10 days — before heading off to private programs.

David B. Salmons, the lawyer arguing the case on behalf of the parents, countered by saying the situation was rarely that simple. The individual education plans are usually devised at the end of a school year for the following year, and parents often need to reserve places well ahead of time in private programs.

“If you wait until the school year has already started, those may not be available,” Mr. Salmons said.

The court considered a similar case just two years ago and split evenly, with four votes on each side and Justice Anthony M. Kennedy recusing himself. In the arguments on April 28, Justice Kennedy participated and, appearing to agree with Justice Stevens, said the school district’s position seemed to “encourage intransigence.”