Justices take Oregon special education case (Jan. 16, 2009)

The Supreme Court has agreed to decide whether federal law requires students with disabilities to first try a public program before they can claim reimbursement for the cost of a private school.

The court heard a case concerning a similar issue in 2007 but Justice Anthony M. Kennedy recused himself for undisclosed reasons, and the other justices tied 4-4 over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win repayment of private school tuition for a child with disabilities who had never enrolled in the city’s school system.

In the case at hand, unidentified Oregon parents decided to withdraw their son from the Forest Grove School District because they felt the student was not receiving adequate education and services.

During his freshman year of high school, the boy was referred for an evaluation to determine whether he had a learning disability that qualified him for services under IDEA. The team of specialists unanimously concluded that student, known in filings as T.A., did not have a learning disability and therefore was ineligible for special education. T.A.’s mother, who attended the meeting, agreed with that determination. No one ever followed up on either the reference to “[p]ossible 504” in the psychologist’s report or the references
to “suspected ADHD” in the School District’s staff meeting notes.

At some point during the next year, T.A. began using marijuana. Eventually, his use became regular, and he exhibited noticeable personality changes. T.A. ran away from home. The police brought him back a few days later. T.A.’s parents took him to a psychologist and, eventually, to a hospital emergency room.

Dr. Fulop, a psychologist hired by T.A.’s parents, met with T.A. a number of times in early 2003. Dr. Fulop held several lengthy sessions immediately after T.A. ran away from home, and he eventually diagnosed T.A. with ADHD, depression, math disorder, and cannabis abuse. Dr. Fulop recommended a residential program.

His parents enrolled him in Mount Bachelor Academy, a residential private school that describes itself as “designed for children who may have academic, behavioral, emotional, or motivational problems.” His parents requested a hearing to require the school district to evaluate T.A. in all areas of suspected disability. A multi-disciplinary team of school officials acknowledged T.A.’s learning difficulties, his diagnosis of ADHD, and his depression, but a majority found that T.A. did not qualify under the IDEA in the areas of learning disability, ADHD, or depression, because those diagnoses did not have a severe effect on T.A.’s educational performance.

An administrative hearing officer ruled that T.A. was disabled and therefore eligible for special education under the IDEA and § 504 of the Rehabilitation Act of 1973; that the school district had failed to offer T.A. a free appropriate public education; that the school district was responsible for the costs of sending T.A. to Mount Bachelor Academy.

The school district appealed to the U.S. District Court for the District of Oregon, arguing that reimbursement was unwarranted because T.A. unilaterally withdrew from public school without providing prior notice to the school district, he never received special education and related services from the school district, and he withdrew for reasons unrelated to his disability (that is, substance abuse and behavioral problems).

The district court reversed the hearing officer’s grant of reimbursement to T.A., but a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit reinstated the hearing officer’s determination.

The school district asked the Supreme Court to hear the case, pointing to a split among the circuits on the issue:

“A divided Ninth Circuit panel expressly adopted the Second Circuit’s view that IDEA permits a tuition reimbursement award under those circumstances. In so doing, the Ninth Circuit flatly ‘reject[ed]’ the First Circuit’s contrary view that the child’s prior receipt of special education services from the public agency is a ‘threshold’ requirement for such reimbursement under IDEA.”

On Jan. 16, the court accepted the case for review. The justices will hear oral arguments in April.

Question presented: Whether parents of a disabled child, who decide on their own to transfer the child to a private school, are entitled to tuition reimbursement from the local public school district if the child had never received any special education assistance previously.