May 1, 2009

The Supremes Do Show and Tell

On Tuesday, April 28, 2009, the Supremes performed another special education show. Diana Ross’s stand-in was Chief Justice John Roberts. What can I say…the man just can’t dance! The U.S. Supreme Court heard oral arguments on a unilateral reimbursement case from Oregon, Forest Grove School District v. T.A., No. 08-305. Cert was granted on 1/16/09. The question was: Does IDEA permit a tuition reimbursement award against a school district and in favor of parents who unilaterally place their child in private school, where the child received special education and related services under the authority of a public agency? This question raised anew the unresolved case of Tom F. It revealed the eagerness of school districts to gut long standing case law permitting unilateral placement and reimbursement when parents prove that FAPE was not provided. Amicus briefs on behalf of the school district were filed by the New York State School Boards Association, the City of New York, Council of the Great City Schools, U.S. Conference of Mayors, National Education Association and National School Boards Association. New York involvement is notable because of its appeal in both Tom F. and Arlington v. Murphy, losing one and winning the other. Amicus briefs for the parents came from the Disability Rights Legal Center, National Disability Rights Network, Autism Speaks, and COPAA. The Solicitor General of the U.S. participated in oral argument and as Amicus for the parents. So what were the stats going in? 7 against and 6 for.

Newspaper coverage on April 29th about the oral argument was interesting. The New York Times gave it eight paragraphs, while The Washington Post gave it 19. New York coverage provided minimal facts, noting Chief Justice Roberts suggested that the burden on special education families was relatively light. David Salmons, the parents’ lawyer, tried to rebut Roberts, who later incorrectly stated that a diagnosis for a child was a related service. The man clearly has no clue and apparently hasn’t even read the statute upon which he is to help make a determination. And this is his fourth time at center stage of a special education feature show. The Washington Post gave much more detailed information. Somehow the mismatch between the news coverage of the two papers and the importance to the New York area and the country at large was unnerving.

T.A. attended public schools from kindergarten to high school, with eligibility for special education denied in 2001, though his counselors had discussed it. In 2004 a district court ordered eligibility on January 26 with an IEP proposed on February 19th. The parents rejected it and placed the child unilaterally.

A transcript of the oral argument had an initial portion that immediately grabbed my eye. The school district cited “the Spending Clause”, or that new little gold nugget that Alito used in his decision to prevent the Murphys from having their expert paid because of their prevailing party status. Forest Grove cited Arlington in its opening argument. That spending clause argument is going to get a lot of mileage as courts continue to gut special education entitlements. Though Scalia attempted to minimize the problems of reimbursement, Souter summarized the reality…

…the cost, it seems to me, is that once you get into …appeals, this thing can go on for years, and you can’t wait years when… a kid is in this kind of condition.

Time after time, Gary Feinerman, council for the school district, insisted that the parents should have “tried” the proposed IEP in the public school and that hearing officers don’t have the authority to order reimbursement. Salmons, on behalf of the child, attempted to explain the IEP process, often with interruptions by Scalia…

You read (IDEA) to say you must pay whenever it (FAPE) isn’t made, and it just doesn’t say that. It’s a safe harbor for the school district. It says so long as you’ve made an appropriate public education available, you can’t be liable for any private school tuition.

Roberts and Scalia continuously distort the contents of IDEA in their questioning of Salmons. The transcript shows that the Justices have no understanding of Child Find or of the special education process that flows from it, a deeply troubling discovery in the group’s performance, a rerun of the show they prepared two years ago in Tom F.

The United States was represented by Eric Miller, who supported the parents. He provided the citation that gave hearing officers the right to award reimbursement for unilateral placements. Immediately thereafter, Roberts countered with a question about the Spending Clause: “Do you have any rough idea of how much of the obligation incurred by the States is reimbursed by the Federal Government? What percentage?” The figure was between 10%- 12%. Roberts continued to rely upon the controlling nature of the Spending Clause, with Breyer commenting that IDEA regulations make no comment about it. Miller also noted that there was no bar to parents from seeking reimbursement though they had never approached the local school district for services.

Judge Souter is going to retire in June. There is a feel in the transcript that the parents might win this. If so, I hope Souter writes the decision. But whatever happens, it remains a mystery to me that after four major special education cases in the last five years before this Court, how it remains so uninformed about IDEA and its implementation. The Supremes showed us what they know. We await what they will tell us as we contemplate where we go from here.