Legislation & Education
Alert! Supreme Court Issues Decision
in NYC v. Tom F.
(Reproduced from Wrightslaw)
On Monday, October 1, the Court heard
Oral argument in New York Bd of Ed v. Tom F.
On Wednesday, October 10, the United States Supreme Court issued a decision
in this case. Justice Kennedy, author of the pro-parent decision in
Winkelman v. Parma, recused himself. The decision was split, 4-4.
What does this decision mean to you?
The favorable decision on behalf of the parents and child stands for families who live in the Second Circuit - Connecticut, New York, and Vermont.
However, the failure of the Supreme Court to issue a definitive ruling on this issue means that the case has no precedential value beyond the 2nd Circuit. The decision is, in essence, a nullity, i.e., the case never went beyond the 2nd Circuit.
You can read the decision in Tom F. at: http://www.wrightslaw.com/law/caselaw/ussupct.nyc.tomf.pdf
"First Bite of Failure Not Required by the IDEA" -
Frank G. v.
Hyde Park Central School District
However, the story may not end here. Tom F. is intertwined with another
case from the 2nd Circuit,
Frank G. v. Hyde Park Central School District.
In
Frank G., the parents prevailed in a tuition reimbursement case
before the U. S. Court of Appeals for the Second Circuit. The school district's
argument was essentially the same as in Tom F.- that parents are not
entitled to tuition reimbursement unless their child was previously enrolled in
the public school's special education program.
The U. S. Court of Appeals for the Second Circuit described the "absurd results"
this argument would cause:
"It would, for instance, prevent children who are provided with inadequate IEPs
from receiving a free appropriate public education if their disabilities were
detected before they reached school age."
"It would also place the parents of children with disabilities in the untenable
position of acquiescing to an inappropriate placement in order to preserve their
right to seek reimbursement from the public agency that devised the
inappropriate placement."
After the parents prevailed in
Frank G., the school district appealed to the U.S. Supreme Court.
Briefs have been filed regarding whether the Court should or should not hear the
school district's appeal. After briefs were filed, they were distributed for a
conference of the Justices that was scheduled for February 16, 2007. No rulings
or orders were issued. The briefs were distributed again to the Justices on
February 20 for a conference scheduled for February 23, 2007.
On Monday, October 10, briefs were again distributed to the Justices for
a conference on Friday, October 12.
The Supreme Court has taken no action in deciding whether to grant or deny
certiorari. The Supreme Court has left the door open to re-visit the legal issue
that was the focus of the Tom F case.
Question - If Justice Kennedy has to recuse himself again, will
the Court grant cert in Frank G.? If Justice Kennedy does not recuse
himself, the Court may grant cert on Frank G. tomorrow, October 12. This will
give the Court another shot at resolving this legal issue.
To follow the Frank G. case,
check the Supreme Court docket sheet.
http://www.supremecourtus.gov/docket/06-580.htm
More Memorable Quotes from
Frank G.
"The plain language of 20 U.S.C. § 1412(a)(10)(C)(ii) does not say that tuition
reimbursement is only available to parents whose child had previously received
special education and related services from a public agency, nor does it say
that tuition reimbursement is not available to parents whose child had not
previously received special education and related services."
"This brings us to the last rule of statutory construction applicable here. This
rule, as we previously observed, is that ambiguous statutes are to be construed
so as to avoid absurd results. It would, for instance, prevent children who are
provided with inadequate IEPs from receiving a free appropriate public education
if their disabilities were detected before they reached school age. It would
also place the parents of children with disabilities in the untenable position
of acquiescing to an inappropriate placement in order to preserve their right to
seek reimbursement from the public agency that devised the inappropriate
placement."
"Such a result, it has been suggested, 'ensures that a parent's rejection of a
public school placement is not based on mere speculation as to whether the
recommended school placement would have been appropriate.' This suggestion turns
on the erroneous assumption that parents would have to keep their child in a
public school placement until it was clear that their 'speculation' was borne
out by a wasted year of actual failure. Such a "first bite" at failure
is not required by the IDEA. (emphasis added)
"We believe that it is unreasonable to suggest that Anthony's parents were
legally required to engage in such a useless and potentially counterproductive
exercise, given Anthony's 'need for constant and consistent care, even brief
periods of inappropriate schooling could lead to tremendous educational, social,
emotional, and psychological deterioration.'"
"We decline to interpret 20 U.S.C. § 1412(a)(10)(C)(ii) to require parents to
jeopardize their child's health and education in this manner in order to qualify
for the right to seek tuition reimbursement.
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New York State Assemblywoman Kathleen Nolan has introduced Bill A.5396 to require that school districts, not parents, bear the burden of proof in special education hearings. This bill is essential to enable us to protect our loved one's right to a decent public education. The NYS Legislature passed this bill last year, but Governor Pataki vetoed it. We can encourage them to pass it again and send it to Governor Spitzer for signature. Right now, those parents who can afford the services of an attorney stand a much better chance of getting a truly appropriate education for their child than the majority who cannot. Please help remedy this injustice by asking your representative to support and co-sponsor this bill. http://www.capwiz.com/nsasa
Update 8/16/07 Governor Spitzer signs Bill A.5396, shifting the burden of proof in special education hearings back to the school districts.
To view the Governor's Press Release
VESID has
scheduled three public hearings on its proposed
regulations to implement the Individuals with Disabilities Education Improvement
Act of 2004 (IDEA 2004) and the final federal regulations to implement IDEA
2004. Written comments on the proposed regulations will be accepted until May
7, 2007.
Written public comment on the proposed regulations may be submitted by writing to: VESID, Special Education Policy, Room 1624, One Commerce Plaza, Albany, New York 12234, Attention L. Luderman. Comments may also be faxed to 518-473-5387.
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Do you have questions about the Special Education Law?
REGULATIONS OF THE COMMISSIONER
OF EDUCATION
Pursuant to Sections 207, 3214, 4403, 4404 and 4410 of the Education Law
Part 200-Students with Disabilities
(Includes all Amendments through January 2007)
