Supreme Court Rules on Private School Tuition Reimbursement for Special Education Students
December 20, 2007

The Individuals with Disabilities Act (IDEA) provides federal funding to state and local school systems to ensure that children with disabilities receive a free, appropriate education. A 1997 amendment to the IDEA states that parents of disabled children “who previously received special education and related services under the authority of a public agency” are eligible for tuition reimbursement of private school costs if the school’s special education program is deemed inappropriate for the child’s educational needs. In Board of Education of City School District of City of New York v. Tom F., the United States Supreme Court considered whether the IDEA permits a parent to receive reimbursement for a disabled child’s private school tuition if the child did not previously receive special education services from a public agency.

In 1995, Tom F. enrolled his son Gilbert in kindergarten at a New York City private school that specializes in learning disabilities of children. In 1996, at Tom’s request, the public school district evaluated Gilbert, classified him as learning disabled, and provided him with an Individualized Education Program (IEP). The school district then reimbursed Tom for Gilbert’s private school tuition for the 1997-1998 and 1998-1999 school years. After reviewing Gilbert’s IEP, the school district notified Tom one month before the start of the 1999-2000 school year of its recommendation that Gilbert be placed in a special education classroom in the public New York City Lower Lab School for Gifted Education. Tom disagreed with the assessment and continued sending Gilbert to private school.

Tom requested a due process hearing to challenge the school district’s recommendation and to request tuition reimbursement for the 1999-2000 school year. The hearing officer granted Tom’s request for reimbursement after determining that the public school district failed to offer Gilbert an educational program that met his needs and that the private school was meeting his needs. On appeal, the U.S. District Court for the Southern District of New York reversed the hearing officer’s decision, holding that because Gilbert had not previously received services in public school he did not meet the IDEA’s threshold requirement for subsequent reimbursement for private school tuition. Board of Education of the City School District of the City of New York v. Tom F., No. 01-Civ-6845, 2005 WL 22866 (Jan. 4, 2005).

In an unpublished summary order, the Court of Appeals for the Second Circuit vacated and remanded the district’s court’s decision in light of its earlier decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir. 2006). In Frank G., the Second Circuit determined that the IDEA does not set forth a threshold requirement that a disabled child must have previously received special education in the public school system to be eligible for tuition reimbursement at private school. The court explained that to hold otherwise would lead to the “unreasonable” requirement that parents keep their child in a public school special education program until it was “clear that their ‘speculation’ was borne out by a wasted year of actual failure.” Id. at 372. According to the court, the IDEA does not require parents to “jeopardize their child’s health and education in this matter in order to qualify for … reimbursement.” Id.

In Tom F., the school district appealed the Second Circuit’s decision to the Supreme Court. The Court heard oral argument on the matter on October 1, 2007, and issued a per curium opinion affirming the Second Circuit on October 10, 2007. Therefore, public schools are required to reimburse parents of disabled children for private school tuition where the public school’s education program is inappropriate for the child’s educational needs. Nonetheless, Plaintiffs in the Frank G. v. Board of Education of Hyde Park case (on which the Second Circuit relied in Tom F.) have filed a petition for certiorari, leaving the door open for the Supreme Court to revisit this issue in a later term.