Education Law

In the Tom F. Case The Tie Goes for the Parents

By Charles Fox

In the Tom F. case the U.S. Supreme Court issued a decision (see pdf below)   which effectively ruled in favor of a parents right to place their child in an out of district placement, sue for reimbursement, even if that child had never been enrolled in the school district.  The decision was 4 to 4 with Justice Kennedy not participating.

The Federal Appeals Court in New York State (2d Circuit Court of Appeals) ruled in favor of  parents' right to seek reimbursement, even if they had not enrolled their child in public school. With a tie vote the lower court's ruling is affirmed or upheld. (see Pete Wright's commentary on the case.)

Download tom_f.pdf

This case is remarkable for a number of reasons. First, the case was argued on October 1, 2007 and now a mere 9 days later a decision was issued; some kind of record for an IDEA case. Next, the level of bellyaching coming from the school side is already loud and given a little more time will become louder.  The National School Board Association ("NSBA") has registered their disgust with the decision arguing that the law is crystal clear: no enrollment, no sue for reimbursement. Well, it is so crystal clear that a Federal District Court Judge in New York City disagreed with them, a panel of three judges on the 2d Circuit Court of Appeals disagreed with the NSBA, and 4 Justices of the Supreme Court also disagreed with the NSBA. They argue that Tom F. could have serious repercussions for schools and invoke a math metaphor:

"The U.S. Supreme Court has just issued a 4-4 ruling in a special education case that has the potential for serious financial consequences on school board budgets.

Speaking of numbers, BoardBuzz has math problem for its loyal readers: What is four minus four minus one? In math terms: (4- 4) -1 = X. BoardBuzz's quick readers have undoubtedly concluded X = -1. And, in the world of Supreme Court math, a -1 justice can have dire consequences."

Well applying math as outlined above for three levels of Federal courts, I find 4+3+1(Judges/Justices)=8 have found the law allows suit for reimbursement even without enrollment, and 4 found to the contrary. In my math 8>4; maybe the NSBA needs to check its figures and its legal analysis before concluding that their position is so obviously right.

The larger issue is that all Tom F. allows is for parents to sue. It does not mandate that parents win. I have not seen statistics but in my experience most parents do not opt out and unilaterally place, until that they have first opted in, and leave in a climatic moment of desparation and frustration with the lack of progress and dwindling future for their child. How many cases will be in the posture of the parents in Tom F. ? The numbers will certainly be in the minority. So NSBA just quit it ! You are not the weak party here; schools will not be bankrupted post-Tom F.; you still have the standard obstacles that have been erected and sustained over time such as Rowley which sets the bar low enough that most schools can meet that standard, if they expend any kind of effort. Remember, you also have Burlington which requires parents to show that the school's program is not appropriate and that the unilateral program is appropriate. Has the NSBA already forgotten that parents can no longer be reimbursed for the cost of expensive experts since the Arlington Central case and that parents have the burden of proving all of this under Schaffer. No NSBA, schools will open tomorrow, the special education budget will not swallow American education as we know it, despite their "dire" predictions.

Parents should celebrate the victory in this case, but it only gets us in the door in a small number of cases. Once we are in the door we are still playing on the school's home turf with many of the rules still stacked in their favor. So lets keep this whole thing in some perspective and tell the school side to please stop bellyaching; it is so unprofessional.

Full post as published by Special Education Law Blog on October 10, 2007 (boomark / email).