Special Education Today

For the last few weeks, I have been running a repeat series I wrote a few years ago on the basics of special education law, with a few updates as appropriate. This is part three.

Today, I'm going to discuss unilateral placements.

among the relief that a due process hearing officer may award is reimbursement for a unilateral placement by the parents. In the case of Burlington Sch. Comm. V. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts (and hearing officers) to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE. Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts and hearing officers to award such reimbursement. Burlington, supra.

The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school. IDEA, Section 612 (a)(10)(C)(ii). Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, Section 612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, Section 612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, Section 612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, Section 612 (a)(10)(C)(iii)(III). Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, Section 612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, Section 612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(I)(cc). Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, Section 612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(II)(bb). See also, 34 C.F.R. Section 300.148.

The most recent decision by the supremes also involves unilateral placements. In Forest Grove Sch Dist v. TA 557 U.S. _____, 109 LRP 36046(6/22/2009). Many people had questioned how a student with serious cannabis abuse issues could be eligible, but that issue was not properly before the court. The only issue was whether the 1997 amendments provision {Section 612(a)(10)(C)(iii)} prohibited reimbursement for unilateral private school placements by parents whose child never received special education from a public school.

The court first reviewed its decisions in Burlington and Carter and renewed their holdings that where a school district denies FAPE and a parent's private placement is appropriate and the equities so permit, a court has broad equitable authority to award appropriate relief including reimbursement for private placements. It is interesting that both Burlington and Carter were unanimous decisions by the high court.

The issue then was whether the 1997 amendments required a different result in this case. the Supreme Court rejected the school district's reading of the statutory provision. The Court found that Section 612(a)(10)(C) did not prohibit reimbursement in other circumstances but rather just permits it in the common circumstance where a child is receiving special education in public school. The Court ruled that these statutory provisions were "elucidative rather than exhaustive." Slip Op at p. 11. (Justice Souter's dissent has some fun with this phrase noting that "When a mother tells a boy that he may go out and play after his homework is done, he knows what she means.")

The majority opinion goes on to note that the 1997 amendments do not impliedly repeal the Burlington and Carter decisions. The opinion notes that it would take more than Congress' failure to comment on previous decisions by the Supreme Court to effect a repeal by implication, which is a doctrine that is not highly favored in the law.

The court then notes that the school district position is inconsistent with the remedial purpose of IDEA and the 1997 amendments thereto. The strong purpose of providing children with a disability with a free and appropriate public education was paramount in the reasoning of the court in Burlington, Carter and this case.

In perhaps the strongest statement in the majority opinion, the Court states that immunizing a school district's refusal to find a child eligible "... no matter how compelling the child's need... would produce a rule bordering on the irrational." The court noted the anomalous result of the school district's position in that it would permit reimbursement where a district offered inadequate services but would leave parents without the remedy in the more egregious situation in which a district unreasonably denies a child access to such services altogether. In rejecting the availability of procedural safeguards provided by IDEA other than reimbursement as an alternative, the court once again noted that the "review process is ponderous."