by Brian Jason Ford, Esq.

I am digesting the argument transcript from today’s oral argument before the Supreme Court in Forrest Grove v. T.A., a special education case about private school tuition reimbursement. I will provide a thorough overview of the Court’s decision when it is released, but the argument itself is noteworthy (and not because it is good for a laugh). I encourage anybody who has even the slightest interest in special education law to read the argument, which you can download here. In this post, I will examine the argument and give background that may help you better understand the decision when it comes out.

I am going to assume that readers of this blog have a general understanding of how special education law works and that you know acronyms like IDEA, IEP and FAPE. If I’m wrong, that’s what comments are for. Also, I am simplifying the facts of the case to focus on substantive issues, not procedural details.

In this case, Forrest Grove evaluated one of its students, T.A., and found him ineligible for special education. When this happened, T.A.’s parents decided unilaterally (i.e. without consulting Forrest Grove) to place him in a private school – to the tune of $5,200 per month. The parents also initiated a special education due process hearing. The hearing officer considered Forrest Grove’s evaluation and other evaluations obtained by the parents, and determined that Forrest Grove got it wrong. T.A. had been eligible for special education all along. Forrest Grove appealed that decision, but developed and offered an IEP while the appeal was pending. In other words, Forrest Grove honored the hearing officer’s order even while fighting in court to have it overturned. The parents rejected the Forrest Grove’s IEP and, instead, pursued claims for tuition reimbursement

On the topic of tuition reimbursement, the IDEA says, in part, “If the parents of a child with a disability, who previously received special education and related services… enroll the child in a private elementary school or secondary school without the consent of… the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if… the agency had not [offered FAPE to the student]… in a timely manner prior to that enrollment.” To get the full text, click here and scroll down to (10)(C).

Forrest Grove keyed in on the language, “who previously received special education and related services.” They argued that language means students are entitled to private school tuition reimbursement if their school district fails to offer FAPE and they had previously received special education. In this case, T.A. had not previously received special education because, at first, Forrest Grove said he did not qualify and later, because his parents rejected services. Thus, Forrest Grove argued that T.A. was not entitled to tuition reimbursement as a matter of law.

T.A. (in conjunction with the Obama administration) argued that the Court must not allow school districts to circumvent their obligations to students with disabilities simply by refusing to find such students eligible for special education. In essence, T.A. focused on the consequences of the rule proposed by Forrest Grove: that school districts could avoid all potential liability for tuition reimbursement by simply refusing to find students eligible for special education. This, according to T.A., would set up a perverse incentive for school districts to deny services. Moreover, according to T.A., when the IDEA is read as a whole, Congress wanted school districts to pay tuition reimbursement if they deny FAPE and parents have to find services on their own. In T.A.’s point of view, Forrest Grove is arguing for a loophole that would thwart the intent of Congress.

One topic that kept creeping into the arguments is truly fascinating: If students must receive special education from their school districts before they are entitled to reimbursement, how much time must they spend in public school before switching to private education? Can a student spend one day in public school and then seek reimbursement? Forrest Grove told the Court that ten days in public school would suffice, and that timeline is supported by the IDEA. T.A. argued that the IDEA does not say how much time students must spend in public school because spending time in public school is not a prerequisite to a tuition reimbursement claim. I hope the Court will discuss this distinction in detail, as it may have an unexpected impact on school personnel decisions (e.g. how can schools make staffing decisions when some students will be in school for only 10 days as a means of securing a tuition reimbursement claim).

Forrest Grove is asking the Court to literally apply what the law actually says. T.A. is asking the Court to give deference to what, in their point of view, the law was intended to do. Of course, the arguments on both sides are much more complex than what I’ve laid out here. If you are interested in special education law, you should read the transcript.

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