Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA

Courtney Rachel Baron[*]

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I.  Introduction

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A.,[1] a case that addresses a deeply contested issue in special education litigation.  Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA)[2] entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school.[3]  Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue.  In fact, in 2007, the Supreme Court addressed the same question in Board of Education v. Tom F.[4]  Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself,[5] resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove.[6]  Currently, the Second,[7] Ninth,[8] and Eleventh Circuits[9] recognize the availability of reimbursement, while in contrast, the First Circuit[10] has refused to do so.

Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools.[11]  The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA.  The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision.  More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.

The Synergy of Early Offers and Medical Explanations/Apologies

Christopher J. Robinette[*]

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Introduction

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators.[1]  It has been challenged as inefficient,[2] inaccurate,[3] and even counterproductive.[4]  Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other.  Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole.[5]  Although some attention has been paid to combining early offers with explanations of the incident[6] or with apologies,[7] the idea has never received a focused analysis.  Recent scholarship on explanations and apologies allows greater insight into the role they play in conflict resolution, and their importance to an early offers proposal in the field of medical malpractice.  This Essay considers such scholarship and explores the advantages of combining early offers with explanations of the incident and/or apologies.

Eight Is Enough

Naomi R. Cahn & Jennifer M. Collins[*]

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Introduction

On January 26, 2009, the nation’s second set of live-born octuplets was delivered at a California hospital.[1]  The public fascination with this unusual event quickly turned ugly when the media revealed that the new mother was thirty-three-year-old Nadya Suleman, a single, unemployed woman already caring for six other children under the age of eight.  As Ellen Goodman of the Boston Globe described it, upon discovery of Suleman’s identity, the mood of the country went “from ‘Gee whiz’ to ‘Are you kidding?’” in a matter of days.[2]

The reaction to Nadya Suleman’s new family stands in stark contrast to the enthusiastic reception for many other families with high-order multiples.  For example, the cable show Jon & Kate Plus 8, which features a family with a set of sextuplets and a set of twins, is currently one of cable television’s highest-rated shows.[3]  The McCaughey septuplets, born in 1997, are similarly famous: for example, they celebrate their birthdays each year with Dateline reporter Ann Curry.[4]  Indeed, public fascination with high-birth families dates back at least to the famous Dionne quintuplets of the 1930s, who were treated as a tourist attraction by the Canadian government and who were visited by more than three million people over a ten-year span.[5]

Mitigating Dysfunctional Deference Through Improvements in Board Composition and Board Effectiveness

Marc Goldstein[*]

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Introduction

In two recent articles, Bernard S. Sharfman and Steven J. Toll argue that cases of corporate malfeasance, such as the failure by Enron's board to prevent the fraudulent actions of its top executives, can be explained in part by the "dysfunctional deference"[1] of board members to corporate management.[2]  Sharfman and Toll posit that outside directors who are themselves corporate executives—especially CEOs—tend to identify with the goals and interests of fellow members of the "executive class."  Instead of questioning the actions of corporate managers as their own knowledge and instincts counsel, such directors defer to the company's insiders.  Sharfman and Toll go on to suggest five ways to address the deference problem: (1) "[l]imit the number" of current or former executives sitting on a board; (2) set term limits for directors; (3) require directors to be knowledgeable about the company on whose board they sit; (4) "[n]ominate outside directors with diverse backgrounds"; and (5) require "minimum time commitment[s]" for board members.[3]