The Supreme Court issued a highly anticipated decision in the case of Board of Education of the City of New York v. Tom F. ex rel. Gilbert F., 107 LRP 58890 (U.S. 2007), but disappointed all court-watchers by failing to rule on the merits of the case. After an impartial hearing officer in New York awarded a family reimbursement for a unilateral placement of their child in a school for children with learning disabilities based on the school district’s procedural error of failing to include all of the necessary participants in the IEP meeting, the federal district court in New York reversed the hearing officer, concluding that the family was not entitled to such reimbursement because the child had never received special education services from the school district before being unilaterally placed by his parents in a private school. The United States Court of Appeals for the Second Circuit vacated the district court’s ruling and remanded the case to the district court in light of its recent ruling in the case of Board of Education of Hyde Park Central School District v. Frank G. ex rel. Anthony G., 459 F.3d 356 (2d Cir. 2006), that reimbursement is not restricted so long as the school district has failed to provide FAPE and the parents have provided appropriate notice of their intent to make a unilateral placement.
Counsel for the school district in the Gilbert F. case made a forceful argument that seemed to appeal to many of the Supreme Court justices that school districts can and should have the opportunity to provide FAPE to a student identified as eligible for special education services before the parents are entitled to unilaterally place the child in a private school and collect reimbursement from the school district. Counsel for the parents argued with equal force that parents who have been presented with an inappropriate IEP by the school district should not have to subject their child to an inappropriate program for any period of time just to satisfy a procedural requirement in order to collect reimbursement for the private placement.
With Justice Kennedy deciding to recuse himself from the case and only eight justices voting, the Supreme Court vote was tied at 4-4. They issued a per curiam decision, which in effect upholds the decision of the Second Circuit because there were not enough votes on the Supreme Court to overturn the Second Circuit’s decision. This is not a decision “on the merits”, however, and with the circuits split on this issue, we can expect to see further litigation, perhaps as early as this year if the Supreme Court decides to grant certiorari to hear the appeal in the Frank G. case, also out of the Second Circuit.
For now, those of us practicing in the Second Circuit will have to continue to assume that parents may collect reimbursement for private unilateral placements, even in cases where the child has never before received services in the district. Look for more on this issue in the months ahead….