Defense Digest 12/08: Ninth Circuit Holds Private School Tuition Is Reimbursable Under IDEA Even Though Student Never Received Special Education From School District

By Christopher J. Conrad, Esq.*

Pennsylvania - Civil Rights

T.A. resided in the Forest Grove School District ("the District"), and he attended school in the District from kindergarten until the spring semester of his junior year of high school, when his parents unilaterally removed him from public school and enrolled him in a residential private school. Throughout his time in the District, T.A. experienced difficulty paying attention in class and completing his school work, but he successfully passed from grade to grade, due in large part to extensive at-home help from his family.

In December 2000, a guidance counselor suspected that T.A. might have a learning disability and referred him for an evaluation for special education services. Also, during internal meetings in early 2001, District staff discussed the possibility that T.A. might be suffering from Attention Deficit Hyperactivity Disorder ("ADHD"), which is classified as a mental disorder, (distinct from a learning disability). T.A.'s parents were never informed of the District's suspicion that T.A. might have ADHD, and they never requested that he be evaluated for ADHD. Rather, he was evaluated only for a learning disability. In particular, several psychologists and educational specialists evaluated T.A. throughout the first half of 2001. The team unanimously concluded that T.A. did not have a learning disability and, thus, was ineligible for special education. T.A.'s mother agreed with the determination. T.A. never received special education and related services from the District.

In 2002, T.A. began using marijuana, and by early 2003, his use became regular, and he exhibited noticeable personality changes. T.A. also ran away from home in February 2003, but he was returned a few days later by the police. T.A.'s parents took him to a psychologist and eventually to an emergency room. The psychologist diagnosed T.A. with, among other conditions, ADHD, depression, and drug use, and he recommended a residential program for T.A. T.A.'s parents removed him from public school in March 2003 and sent him to a three-week wilderness therapy program. Upon his completion of the program, T.A. was enrolled in a residential private school. T.A. would have graduated from public high school in June 2004 had he remained.

After enrolling T.A. in the private school, his parents petitioned for due process under IDEA, seeking, among other relief, an order requiring the District to evaluate T.A. in all areas of suspected disability. The due process hearing officer ultimately concluded that T.A. was disabled and, thus, was eligible for special education and related services under IDEA. The hearing officer also concluded the District failed to provide T.A. with a free appropriate public education and ordered that the District was responsible for the cost of sending T.A. to private school.

The District appealed to the federal District Court, arguing that tuition reimbursement was unwarranted because T.A.'s parents unilaterally withdrew him from public school without prior notice; he never received special education services from the District; and T.A. withdrew for reasons unrelated to his disability (i.e., substance abuse and behavioral problems). The District Court agreed and reversed the hearing officer's decision, concluding that T.A. was statutorily ineligible for reimbursement under IDEA. The District Court specifically held that §1412(a)(10)(C) of IDEA bars reimbursement of private school tuition for students who have not "previously received special education and related services."

On further appeal, the Ninth Circuit concluded that the language contained in §1412(a)(10)(C) does not categorically bar private school reimbursement, even where a student had not previously received special education and related services from the school district. Rather, the Circuit Court reasoned that construing §1412(a)(10)(C) as creating such a categorical bar is inconsistent with the express purpose of IDEA, which is to ensure that all children with disabilities have available to them a free appropriate public education. Notably, the court reasoned that "if a school district declined to recognize a student as disabled - as occurred in this case - the student would never receive special education in public school and therefore would never be eligible for reimbursement." The court further premised its holding upon §1415(i)(2)(C), which in part provides that parents "have an equitable right to reimbursement for the cost of providing an appropriate education when a school district has failed" to do so. The Circuit Court, therefore, reversed the District Court's decision and directed the lower court to consider whether to grant reimbursement and the amount of reimbursement.

As of this writing, courts in the Third Circuit evidently have not yet considered (or at least ruled upon) the issue squarely before the Ninth Circuit in Forest Grove, and, therefore, the Ninth Circuit's holding that private school tuition may be reimbursed under IDEA, even where the student had not previously received special education services from the responding school district, has not yet been followed here. Nonetheless, Forest Grove perhaps signals a growing trend among the federal courts to allow such reimbursement under IDEA. Indeed, the Ninth Circuit in Forest Grove relied considerably upon the Second Circuit's decision in Frank G. v. Board of Educ., 459 F. 3d 356 (2nd Cir. 2006), cert denied 128 S. Ct. 436 (2007), where the Second Circuit similarly concluded that the reference in §1412(a)(10)(C) to students "who previously received special education and related services" does not create a categorical bar to private school reimbursement.

In light of this potentially developing trend, practitioners who represent school districts in matters brought under IDEA should be prepared to address and respond to requests from petitioners for private school reimbursement, even in instances where the student may not have received special education and related services from the responding district previously, and/or where the parents may have withdrawn the student unilaterally from the district without prior notice.

*Chris, an associate in our Harrisburg, Pennsylvania, office, can be reached at (717) 651-3531 or cjconrad@mdwcg.com.