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Argument Recap: Forest Grove School District v. TA

Stanford student Tiffany Cartwright summarizes Tuesday’s oral argument in Forest Grove v. TA.

At Tuesday’s oral argument in Forest Grove School District v. T.A., the Supreme Court considered whether the Individuals with Disabilities Education Act (IDEA) categorically bars tuition reimbursements to parents who place their child in private school without the child first receiving special education services from a public school .

Gary Feinerman appeared first for petitioner Forest Grove. Although he began by discussing the plain language of the statute and the implications of the Spending Clause (the two major arguments in Forest Grove’s merits brief), Justice Ginsburg quickly steered the argument toward the practical implications of the case, asking if a child who does not receive a “free appropriate public education” (FAPE) because a school district failed to provide services at all would ever be entitled to reimbursement.

No, Mr. Feinerman argued. If Congress had meant for any child who did not receive a FAPE to be entitled to reimbursement, it would not have bothered writing the express provisions addressing tuition reimbursement in 20 U.S.C. § 1412(a)(10)(C)(ii)-(iv). If a school makes an incorrect determination about a child’s diagnosis, he continued, that can be remedied by other provisions within the IDEA, which provide strict time limits for administrative review – although, as Justice Souter then pointed out, if judicial review is sought after administrative remedies have been exhausted, there is no time limit whatsoever.

Continuing to focus on the implementation of the IDEA, the discussion turned to what exactly parents must do to qualify for reimbursement under Forest Grove’s interpretation of the statute – that is, what qualifies as “special education and related services.” Mr. Feinerman argued that even when a school district believes a child is not entitled to services at all, and seeks to appeal the decision of a hearing officer finding otherwise, it will create a provisional Individual Education Plan (IEP) for the child while the appeal is pending. At that point, the parents could qualify for reimbursement merely by trying the IEP for at least ten days. The Justices seemed to view the ten-day requirement differently: Justice Souter pointed out that it was a formalistic requirement that probably wouldn’t accomplish anything for parents who truly believed the IEP was inadequate; the Chief Justice, on the other hand, seemed to take the position that because the ten-day period placed such a low burden on parents, the potentially adverse effects of Forest Grove’s argument were being overstated.

Although Mr. Feinerman then attempted to steer the argument back towards the text of the statute, Justice Kennedy (whose recusal in Board of Education of New York v. Tom F. – a case that presented the same question – left the Court tied four-to-four) weighed in with his view of the case. In Justice Kennedy’s opinion, the problem with T.A.’s view of the statute is that it gives too little meaning to Subsection C(ii), but Forest Grove’s view is “formalistic” and seems to “encourage intransigence.” To resolve these tensions, Kennedy suggested that when a child has not previously received special education services, the Court adopt a presumption in favor of the school district’s diagnosis and/or IEP. The parents would not be categorically barred from receiving reimbursement, but would have to overcome the presumption in favor of the school district by clear and convincing evidence. Mr. Feinerman agreed that if the Court were to reject Forest Grove’s position, they would have the authority to adopt such a presumption.

The Chief Justice then asked if the initial determination of a child’s eligibility for special education could qualify as “related services” under Subsection C(ii), thus bringing children like T.A. who were determined ineligible within its ambit. Mr. Feinerman rejected this suggestion, and reserved the rest of his time for rebuttal.

David Salmons then appeared on behalf of respondent T.A. The Chief Justice began the question by going back to the ten-day requirement: what was so unreasonable about requiring parents to try out the public school’s services for ten days? This brought the Court back into a discussion of how IEPs actually work, and whether such a requirement would in fact be difficult for parents who disagreed with the proposed IEP.

Justice Scalia then brought up the issue of statutory interpretation, which had been the main focus of the merits brief, challenging T.A.’s interpretation of Subsection C(i). C(i) provides that school districts are not liable for reimbursement when they have provide a student with a FAPE; that does not necessarily mean, Scalia pressed, that a district which does not provide a FAPE must provide tuition reimbursement in every case. Mr. Salmons responded that Forest Grove’s interpretation adopts the same sort of “negative implication” with respect to Subsection C(ii), and then reiterated T.A.’s stance that C(ii) merely identifies further requirements for a specific class of cases that were important to Congress.

Justice Breyer then made a suggestion similar to Justice Kennedy’s presumption in favor of the school district: perhaps in the usual case a student would be required to try out a public school’s services first, but in exceptional circumstances courts could award reimbursement as a matter of equity to students who had not received prior services. Mr. Salmons quickly agreed, noting that this was basically T.A.’s argument.

The Court then turned to the question of where a hearing officer in an administrative IDEA proceeding gets the authority to order tuition reimbursement in the first place. Mr. Salmons pointed to a section of IDEA that grants parents the right to present complaints with respect to “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE to such child.” Justice Scalia pressed him on whether that really included an authorization of power to grant tuition reimbursement, but Mr. Salmons emphasized that that is how the statute has been repeatedly interpreted. Ultimately, this line of questioning just led to agreement among the Justices that hearing officers in administrative proceedings and courts in judicial review of those proceedings should be able to grant the same types of relief.

Assistant Solicitor General Eric Miller appeared next on behalf of the United States as an amicus curiae supporting the respondent. He reiterated the seeming inconsistency that if Forest Grove had provided T.A. with special education services that were later determined to be inadequate, there would be no question about his right to tuition reimbursement, but since they provided no services at all, they claim that they are “categorically immune from such an award.” The Chief Justice, alluding to the earlier discussion about how even school districts that believe services should be denied will create a provisional IEP when a hearing officer rules against them, wanted Mr. Miller to focus on the parents who refuse an IEP once it is offered by the school district.

Mr. Miller responded by noting that Forest Grove’s interpretation of the statute does not solve the problem raised by the Chief Justice. Forest Grove argues that all that is required is special education “services” at some point; because a new IEP is developed each year, parents could refuse a new IEP at any time and still be eligible for reimbursement, so long as their child has received services previously. Forest Grove’s interpretation would only apply to parents who reject the very first proposed IEP.

Justice Kennedy again suggested the idea of a presumption in favor of the school district’s diagnosis and plan that could only be overcome by a showing of clear and convincing evidence that reimbursement was appropriate. Mr. Miller pointed out that the statute specifies that administrative and judicial proceedings under IDEA are governed by a preponderance of the evidence standard, but that a hearing officer should certainly show some deference to a school district’s expertise.

The Chief Justice then – for the first time, despite its prominent appearance in Forest Grove’s briefs – addressed the Spending Clause, asking Mr. Miller what percentage of the state’s financial obligations under IDEA are reimbursed by the federal government. When Mr. Miller estimated that number at ten to twelve percent, the Chief Justice then questioned him on whether the Court should take that into account when deciding whether or not to “vastly expand liability” for school districts. Mr. Miller disputed that characterization, pointing to statistics in an amicus brief indicating that unilateral placement of students in private schools is actually very rare.

Mr. Feinerman then rose to give his rebuttal on behalf of Forest Grove. He used his remaining time to dispute the suggestion that the regulations granting authority to hearing officers would include the power to grant tuition reimbursement to students such as T.A., and that even if T.A. were to prevail, only the courts would be able to award reimbursement to similarly situated students.