Courtney Rachel Baron[*]
On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A., 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) 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. 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. Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself, resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove. Currently, the Second, Ninth, and Eleventh Circuits recognize the availability of reimbursement, while in contrast, the First Circuit 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. 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.