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Supreme Court Sides With Student's Family in Special Ed Funding Case
The American Lawyer
June 23, 2009
Experts are already debating the impact of Monday's U.S. Supreme Court ruling in a case pitting the family of a special needs high school student (and his legal team at Bingham McCutchen) against the school district that had been ordered to pay the student's hefty private school tuition (and the district's lawyers at Sidley Austin).
Educators and public school officials everywhere were watching the case, and they had claimed that millions -- maybe hundreds of millions -- of public money was at stake. If that's so, public officials might be cringing today, because the Court sided, 6-3, with the student's family and Bingham.
The ruling upholds a decision from the 9th U.S. Circuit Court of Appeals mandating that the school district pay $65,000 for the boy's private school tuition.
At issue was a 1997 amendment to the Individuals with Disabilities Education Act that says public tuition may be available for students who "previously received special-education" services in a public school -- if that public school does not provide a "free or appropriate public education" (known as a FAPE) for the student. The Sidley team, led by partner Gary Feinerman, argued in part that the amendment prohibited reimbursement if the students in question had never received special education services in public schools.
That was the case with the student, T.A., who exhibited serious academic problems during high school in 2001 and once brought a knife to school. A school psychologist evaluated T.A. and found no evidence of any learning disability. Based on that decision, the school district did not build an individual learning plan for the student or place him in a special education program. A private doctor later diagnosed T.A. with a form of attention deficit disorder, and his parents enrolled him in a private school.
The district argued T.A. never tried a special education program at his public high school, and so was not entitled to tuition reimbursement. David Salmons, the Bingham partner on the case, argued that Congress did not envision such a categorical bar when it amended IDEA in 1997. The high court agreed, ruling that the school couldn't deny T.A. entry into a special education program based on a diagnosis that turned out to be wrong, and then try to avoid the tuition requirement by claiming that T.A. had never tried the school's special education program.
(Interestingly, as we previously reported, the Court deadlocked at 4-4 in a case that turned on this same issue in 2007. Justice Anthony Kennedy recused himself in that case for unknown reasons. The votes weren't public, so we don't know how the justices voted in that case, but Salmons clearly won over at least one holdout this time around).
Salmons, who tried three major IDEA cases during his half-dozen years as an assistant to the Solicitor General of the United States, says he is gratified by the court's ruling. He says school districts (and the press) are overreacting when they say the decision will cost public governments hundreds of millions of dollars they wouldn't otherwise have to spend. Salmons says the Court's ruling merely upholds the status quo by ruling that families have the chance to argue for tuition reimbursement in circumstances like T.A.'s. Such reimbursement is not guaranteed, he says: Families have to prove that reimbursement is an equitable remedy and fulfill other conditions.
"We felt that the facts in this case were very favorable to the family," says Salmons, who got the case after the family's local counsel interviewed several experienced appellate lawyers familiar with the issues involved.
Sidley's Feinerman was not immediately available for comment. Sidley took the case nearly pro bono after the 9th Circuit's adverse ruling last year. The firm wrote the cert petition and agreed to accept $60,000 only if the high court took the case.
There are about six million special education students in the U.S., and about 90,000 of them get placed in private schools, according to The New York Times. New York state spent about $89 million on such placements in 2007-08, up from about $53 million two years earlier, The New York Times says.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.
