Private Special Education Argued in High Court

WASHINGTON (CN) - The U.S. Supreme Court heard arguments Tuesday over whether a school district must reimburse parents for the $5,200 per month cost of private special education for a child who did not qualify for public special education. "It's a big expense you are asking the school district to incur that will take away funds from other programs," Chief Justice John Roberts said.

During his time in an Oregon public school district, T.A. was evaluated by psychologists and educational specialists for learning disabilities after his guidance counselor became concerned in 2000, but the team determined that T.A. did not have a learning disability. T.A.'s mom agreed.

The situation resurfaced in 2003 when T.A.'s parents hired a psychologist after he ran away from home. The psychologist diagnosed T.A. with attention deficit hyperactivity disorder, depression, math disorder, and cannabis abuse.

In response, the parents moved T.A. to Mount Bachelor Academy, a private school for "children who may have academic, behavioral, emotional, or motivational problems" at the cost of $5,200 per month.

They then requested a hearing to order the Forest Grove School District to again evaluate T.A. for a disability, and in 2003 the school assembled experts on two different occasions. While they acknowledged T.A.'s problems, most found that the problems did not have a severe effect on his educational performance, and that he did not qualify for special education.

Nonetheless, the hearing officer held that T.A. was disabled and said the school district should pay for T.A. to attend the private school because it had failed to provide him with an adequate education.

At that point, the district did prepare an individualized education program but T.A. did not return to the public school system.

"They put him in a private school without even consulting the schools, saying, `by the way, we can get some money'," said Justice Antonin Scalia.

Gary Feinerman, from Sidley Austin, argued in favor of the school district. He referred to the Individual with Disabilities Act passed in 1997, which says, "You may require the district to pay for someone who has been enrolled in special services."

T.A. had not been enrolled in special services, argued Feinerman. The family had not given the school district a chance. The district was therefore not obligated to reimburse them, he said.

"Then what happens when the child doesn't receive special education because the school has determined that the child is not eligible?" asked Justice Ruth Bader Ginsburg. "What is such a parent to do?"

Feinerman replied that the parents could seek a due process hearing to challenge the findings, as the parents did here. However, if the hearing finds that the student qualifies for special education, the student must try the school district's special education first, for at least 10 days.

Roberts said the diagnosis might have made the student eligible for reimbursement. "The statute asks whether they previously received special education and related services," observed Roberts. "Diagnoses would seem to me to be a service related to special education," he said.

Feinerman argued that a diagnosis was just to determine the student's eligibility for special education, and that T.A. had not qualified.

Justice David Souter said he agreed with Feinerman, but was concerned about the slowness of the public school bureaucracy in responding to the needs of disabled students. "I fully understand your textual argument. I can see its soundness as a possibility that is open to us and perhaps the most likely possibility, but there is a cost. This thing can go on for years, and you can't wait years when a kid is in this kind of condition."

The turnaround from when a parent files for a hearing and when the student can begin his special education is 75 days, said Feinerman. "A fast turnaround," he called it. Of course, the hearing would need to find the student was eligible.

Salmons, from Bingham McCutchen represented T.A. He argued that the school district had improperly denied a disabled child access to public education services. The school should therefore reimburse T.A.'s parents for the costs of getting those services elsewhere, he argued.

"All they are saying is give it a try for ten days," said Justice Roberts. "What Congress provided it that the child must have previously received special education and related services. So I think you've got to try it out at least for a minimal period."

The district was given a chance back in 2001 and 2003, said Salmons, when it improperly concluded that T.A. was not eligible for special education.

"It doesn't work like that," he added. Individualized education programs are developed at the end of the school year and implemented the next year. It would have taken too long for T.A. to go back and try the program, explained Salmons.

He argued that the act only disallowed reimbursement of the parents if the school district had provided free and appropriate public education, which Salmons said was not the case.

"You are reading it to say something it doesn't say," replied Scalia.

"In reading it that way, you are reading the phrase `who previously received special education services' to mean also who previously did not receive special education services," said Roberts.

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