Court rules for parents of disabled child
UPDATE: The Court’s brief order can now be found here.
Dividing 4-4 , the Supreme Court on Wednesday upheld an appeals court ruling that parents of a disabled child are entitled to reimbursement of private school tuition even if the child has not previously received any public special education services. Justice Anthony M. Kennedy took no part, and the remaining eight Justices split. The case had been granted in February; Kennedy announced his recusal from the case only on Sept. 19, not long before the case was to be heard, on Oct. 1, opening day of the Term.
The order in New York City Board of Education v. Tom F. (06-637) has the effect of upholding a Second Circuit Court ruling, but does not set a precedent for other cases, even on the same issue.
If the Court wishes to take up the question again fairly soon, it has pending on its docket another Second Circuit case that is available for review — assuming that there are no complications that would require any Justice to stay out of it. The case is Board of Education, Hyde Parke Central School District v. Frank G., et al. (06-580). The Court had considered both that and the New York City case at Conferences last February, before choosing the New York case as the one it would review. There was, of course, no explanation why they chose that one as the vehicle. The Hyde Park case thus has been on hold.
I’m having problems reconciling the per curiam order with the question, “Why did SCOTUS take this case?” Maybe I’m missing something obvious, but it seems like the decision (specifically, its lack of opinion) neither solves nor clarifies any issues related to this case. Is it reasonable to conclude that by virtue of the per curiam decision, NYC Bd of Ed. v Tom F turned out to be a “bad vehicle” for the issues at hand, and as Lyle alludes to, SCOTUS has to go to a “do over”?
Comment by David Huberman — October 10, 2007 @ 1:11 pm
how can you say that the PUBLIC SYSTEM is inadequate when you never used it. Seems They just wanted a Private education paid for.
Comment by Lawrence sheehy — October 10, 2007 @ 1:14 pm
A second, unrelated point to my first comment. I have seen recent allusions to the SCOTUS processes as exemplar of the Judiciary being “the most transparent” branch of government. In NYC Bd. of Ed. v Tom F., SCOTUS saw fit to grant cert, accept merit briefs and amici filings, and have arguments presented orally by counsels. In the end, however, there is no illumination — there is only a terse order sheet with no indications of “why” or “how”. There’s no view into the decision making. There is no transparency, only opaqueness.
It seems to me a per curiam order on a case granted cert and proceeding accordingly could be viewed as either a disservice to the community, a cop-out, or both. (Again, if I’m missing something obvious, someone please hit me over the head with a clue bat.)
Comment by David Huberman — October 10, 2007 @ 1:18 pm
As a parent similarly affected as the plaintiffs in this case, I am extremely frustrated that the Supreme Court has rendered itself completely ineffective to providing clarity on this issue and setting important legal precedent for other circuits.
The CENTRAL issue to this case was to enable parents, rich or poor, to seize the limited window of opportunity for children with autism to derive the essential benefits of appropriate early intervention. The child in this case in now 18 years old. I can only imagine how disheartened the family is that their valiant efforts on behalf of similarly situated families cannot gain anything from their marathon. The SCOTUS has done nothing more than waste the precious little time children with autism have.
Comment by Emily Hill — October 10, 2007 @ 1:32 pm
You are missing something obvious. The Court split 4-4 and therefore did not make a decision. It is the court’s practice not to release opinions explaining the views of the Justices on each side of the 4-4 split when these opinions will have no effect whatsoever.
Comment by Adam Smith — October 10, 2007 @ 1:34 pm
Huh. I agree with the first comment. The could have simply changed their mind about taking the case and got the same result. Why not dismiss the case as “improvendently granted” and leave it at that…
I guess the one advantage is that we now know the court is split on this issue (wow) and that Kennedy will be the deciding vote (how unusual).
Comment by Danile Thomas — October 10, 2007 @ 1:50 pm
I just wish they had spent as much time trying to clarify this issue as they spent on the hanging chad.
Comment by Josie Smith — October 10, 2007 @ 1:53 pm
Ok, thank you Adam Smith.
Comment by David Huberman — October 10, 2007 @ 2:02 pm
In response to Mr. Sheehy, this split decision does exactly that – merely reimburses a family without financial need for a private education they were forced to seek due to the inadequacies of their local public school sytem. You don’t have to test drive a two-seater convertible to know it’s not going to meet the needs of your family of four. The family made an informed decision based on the needs of their child. To “try out” an inadequate placement would have resulted in irreparable harm to a child who has a critical need to get things right from the start. There is no window for trial and error with autism.
A thoughtful and thorough decision, however, regarding the unique circumstances of autism would have enabled the millions of disabled children afflicted with this devastatingly progressive disease to make an informed choice in a timely manner. Forcing them to fail first in order to pursue their federal right is an abomination.
The public schools are already paid for with tax dollars. Give those whose public schools cannot meet their obligation to provide a free and appropriate education to our children their taxes back to put towards a private education. If they did this, there would be no need for these kinds of cases. Until then, this is about much more than getting a private education “paid for.”
Comment by Emily Hill — October 10, 2007 @ 2:02 pm
Does anyone have a guess why Kennedy didn’t participate?
Comment by Michael Colasanti — October 10, 2007 @ 2:28 pm
My guess is as the typical “swing” vote, he sat it out so that they would not have a binding ruling on this issue. This is a hot topic that tends to go straight down party lines. He wasn’t willing to step out on a limb. I’d prefer to think his recusal was based on something more solid, but with him giving no reason, that leaves it open to unfortunate speculation.
Comment by Emily Hill — October 10, 2007 @ 3:14 pm
Emily Hill said:
“Give those whose public schools cannot meet their obligation to provide a free and appropriate education to our children their taxes back to put towards a private education.”
I think this is a great idea, and it would apply to lots of students who aren’t disabled. Sadly, many children are trapped in lousy public schools.
Comment by Stephen Jaros — October 10, 2007 @ 4:17 pm
No Justice recuses him or herself from a case simply because they don’t feel like ruling on it. To even insinuate otherwise is appalling. Justice Kennedy had a conflict of interest, either with one of the parties or counsel thereof. He need not disclose the exact nature of it. It’s that simple.
Comment by James N. Markels — October 10, 2007 @ 4:31 pm
“SCOTUS saw fit to grant cert, accept merit briefs and amici filings, and have arguments presented orally by counsels.”
Unless this is a very unusual per curiam, there were no arguments. It would have an argued date if that were the case, and the entire point of a per curiam is that the court doesn’t hear arguments, but returns a decision at the same time it grants cert. Maybe this is a weird case, but I don’t see anything indicating that.
Comment by Paul Joseph — October 10, 2007 @ 4:55 pm
Unfortunately, nothing is simple in the world of politics. Hidden agendas abound. I’m not saying that is the case there, but let’s not oversimplify. Besides, there could be any number of conflicts. Perhaps he has a child, grandchild, relative or close friend affected by autism. Doesn’t everyone these days?
Comment by Emily Hill — October 10, 2007 @ 5:20 pm
Uggh.. Somebody do something here, the quality of the comments has all of a sudden severly deteriorated…
Paul Joseph,
Of course there were arguments in this case. SCOTUSblog even linked to them. Per Curiams are not only issued for summary reversals, but also are routinely issued for DIGs (I better translate: “Dismiss[als] (for cases)Improvidently Granted)”, and siruations like these, where an opinion is affirmed by an equally divided court.
Comment by Jacob Berlove — October 10, 2007 @ 9:57 pm
@Paul Joseph:
“per curiam” merely means that the order/opinion was made in the name of the court, not in the name of the individual justices. I’ve seen various opinions issued per curiam, even after argument. Usually the reason is because in the unanimity of the court, the issue turned out to be fairly straight-forward and lots of carefully nuanced opinions wouldn’t have helped. I have even read per curiam opinion with signed dissents.
In this case, it apparently became clear early on in the internal discussion that it was going to be 4-4 and no Justice was likely to be swayed. The end result is no opinion of the court and no precedent is set. Under those circumstances, why write signed opinions?
Comment by Buddha Buck — October 10, 2007 @ 10:38 pm
Any thoughts on how the justices voted — and why?
Comment by Bob Wiener — October 11, 2007 @ 8:20 am
[...] private tuition for a disabled student who’s never enrolled in public school? It’s a toss-up. The Supreme Court split 4-4 on a New York case. The lower court opinion in favor of the parents [...]
Pingback by Court splits on special-ed case at Joanne Jacobs — October 11, 2007 @ 3:47 pm
Perhaps the court will ultimately prefer to leave this one to Congress. Tom Freston was a bad choice. Wealthy New Yorkers NEVER send their children to public school (except for Cynthia Nixon, who is a public education advocate.)As I understand it, Mr. Freston’s child’s tuition is in the neighborhood of $30,000 per year. Had his child not been autistic, the child would most certainly have attended private school as well.In many of our school systems, “normal” students are already being shortchanged. Is it reasonable to favor a minority with one particular disadvantage over others, and to such an exorbitant degree?
Comment by Claire Dillon — October 11, 2007 @ 8:11 pm
Don’t forget that the majority opinion in Bush v. Gore was per curiam as well.
Comment by James N. Markels — October 12, 2007 @ 11:21 am
Claire Dillon wrote: “Is it reasonable to favor a minority with one particular disadvantage over others, and to such an exorbitant degree?”
Is the need for special education considered “favoring” a minority over others? The IDEA federal law enables parents to seek a private placement for a disbled child if the public school system cannot provide an appropriate one. In fact, the public school systems are REQUIRED to do this.
“Special education” by definition is specially designed instruction for any child meeting the eligibility criteria. IDEA does not limit itself to children with “one particular disadvantage.”
The assumption is that by virtue of their special needs, that there will be instances where a public school program designed primariy to meet the needs of typical children cannot provide an appropriate education for certain special needs children, certainly appears reasonable. Hard to imagine that any child is so lucky as to be “favored” in this way due to a disability.
As far as “to an exorbitant degree” – consider for a moment that the child in this case requested reimbursement for private tuition in the amount of $21,819. This was actually $4,678 less than it would have cost the average New York City school to educate him.
Seems like everyone would have come out a winner under this scenario, except due to the instransigence of the district, they prostituted the taxpayers of NY who unwittingly funded the the BOE’s legal fees for the last decade fighting this incredibly justified and modest claim.
Thank God for a wealthy businessman who could have just as easily opted out of the fight, as so many do, but instead stepped up for decades of a principled pursuit for the sake of those who don’t have the same resources, and by that I mean time, energy AND money. What an incredible and selfless service to families who do not have the means to pay attorneys to protect their disabled child’s federal rights when they are violated. He is a true hero.
Comment by emily hill — October 12, 2007 @ 5:20 pm
While I understand the need to place all children in an environment where they can learn, to the best of their abilities, my fear is that parents who never planned to send their children to public school (a millionaire in NYC sending their kid to public school intentionally? Please.) will start flooding the districts with bogus requests for reimbursement.
Since there are not endless resources for education, the children who are left behind in our public schools, will suffer because the resources have to come from someplace.
Will there ever be a case where a gifted student goes before the Court because the curriculum of their school was dumbed down and s/he is not receiving the education they need?
Could someone please site the source for the diagnosis of the child involved in this case? All of the sources I have found indicate that Gilbert was diagnosed with mild to moderate ADHD.
Comment by Heidi Pasos — October 19, 2007 @ 2:09 pm
If gifted students had the right to a private education at public expense as disabled students due under federal law, then you might see such a case. Congress developed the IDEA because they understood the critical need for children with disablities to have a specialized education in the interest of equal opportunity and the right to pursue an independent life. Gifted students are not dealing with such high stakes.
Comment by Emily Hill — October 19, 2007 @ 7:55 pm