Supreme Court Ducks Ruling on Special Education
Counsel for the school district in the Gilbert F. case made a forceful argument that seemed to appeal to many of the Supreme Court justices that school districts can and should have the opportunity to provide FAPE to a student identified as eligible for special education services before the parents are entitled to unilaterally place the child in a private school and collect reimbursement from the school district. Counsel for the parents argued with equal force that parents who have been presented with an inappropriate IEP by the school district should not have to subject their child to an inappropriate program for any period of time just to satisfy a procedural requirement in order to collect reimbursement for the private placement.
With Justice Kennedy deciding to recuse himself from the case and only eight justices voting, the Supreme Court vote was tied at 4-4. They issued a per curiam decision, which in effect upholds the decision of the Second Circuit because there were not enough votes on the Supreme Court to overturn the Second Circuit's decision. This is not a decision "on the merits", however, and with the circuits split on this issue, we can expect to see further litigation, perhaps as early as this year if the Supreme Court decides to grant certiorari to hear the appeal in the Frank G. case, also out of the Second Circuit.
For now, those of us practicing in the Second Circuit will have to continue to assume that parents may collect reimbursement for private unilateral placements, even in cases where the child has never before received services in the district. Look for more on this issue in the months ahead....
