Disability Law

Tom F. - Should a First Bite at Failure be Required in Special Education?

By Danielle

Last month, the United States Supreme Court ruled for the parents of a disabled child in New York City Board of Education v. Tom F. (06-637). You can read the Court’s order, with a 4-4 split (Justice Kennedy recused himself) here (be warned, though, that it is completely without substance).

The Court affirmed a 2nd Circuit decision ruling that parents of a disabled child are entitled to tuition reimbursement under the IDEA even if that child has not previously received any public special education services.

Because it was a 4-4 split, the Tom F. decision has no precedential value beyond affirming that particular 2nd Circuit case. The ruling will not apply to any cases that may arise in the future, even if the facts are virtually identical. The Court had the opportunity to review a similar case, Board of Education, Hyde Parke Central School District v. Frank G., et al. (06-580), but denied cert. in that case shortly after deciding Tom F. You can read the 2nd Circuit decision in Frank G. here.

In Tom F., the City argued that the parents should have been required to give public special education a chance before going to a private school. However, as the 2nd Circuit wrote in Frank G., “[t]his 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.”

That is the entire point, the crux of the issue. Should parents be required to damage their child’s chances during a crucial period of development by risking everything in a public school placement instead of placing their child in an appropriate education setting as quickly as possibly? As the Wall Street Journal quotes Gary Mayerson, director of the Autism Speaks federal legal appeals project, as saying, children with autism and other disabilities “cannot afford to waste six months” in an inappropriate placement. “By that time, the damage has been done.”

The 2nd Circuit appears to understand that point. Perhaps someday the Supreme Court will as well.

More information and coverage can be found at:

• ScotusWiki: Board of Education of New York v. Tom F.
• ScotusBlog: Court rules for parents of disabled child
• NY Times: New York City Loses Special Education Appeal
• NY Times: Disabilities Fight Grows as Taxes Pay for Tuition
• NY Times: With Justices Split, City Must Pay Disabled Student?s Tuition
• Special Education Law Blog: In the Tom F. Case The Tie Goes for the Parents
• National School Boards Association BoardBuzz: Supreme Court math doesn’t add up
• Wrightslaw: Alert! Supreme Court Issues Decision
  in NYC v. Tom F.

• NY Sun: The Court Shirks
• NY Sun: Schools Stymie Justices
• Law.com: NYC Loses Round Before Supreme Court on Tuition Payback Policy for Learning-Disabled Students
• Washington Post: Court Is Split, Won’t Hear Special-Education Case
• Bloomberg: Supreme Court Deadlocks on Special Education Case

Full post as published by Mental Disability Law Blog on November 07, 2007 (boomark / email).