Board of Education of the City School District of the City of New York v. Tom F.

The Supreme Court declined to take sides in the issue of reimbursement for the private education of those with special needs in a case brought by MTV co-founder Tom Freston. On October 10, 2007, the Court affirmed the decision below in Board of Education of the City School District of New York v. Tom F.. The per curiam decision reflected a 4-4 vote, with Justice Anthony Kennedy taking no part in the consideration of the case.

In the case, the Court had been set to decide whether parents can be reimbursed for their children's private educations if they refused to give public school special education a test-drive. Tom F. is the third major case interpreting the Individuals with Disabilities Education Act (IDEA) taken by the Court in the past two years. The parent in the case is Tom Freston, one of the founders of the MTV Network.

The case began in 1995, when Freston sent his kindergartner directly to New York City's Stephen Gaynor private school on the Upper West Side without attempting to enroll him in a public school. For the next two years, the New York school board reimbursed Freston for the boys private school tuition.

In 1999, after evaluating the boy and creating an "Individualized Education Program" for him, the Board recommended that he be placed in a public school with a 15:1 student teacher ratio. Freston rejected the placement as inadequate, opting instead to re-enroll him at Gaynor, where he was one of fewer than ten children taught by a team of several teachers.

As required by the IDEA, Freston asked an impartial hearing officer to review the district's decision. That hearing officer concluded that the proposed public school, P.S. 871, could not meet the boy's academic needs. He noted that, in addition to the larger class size, the boy would be placed in a math group with students at a kindergarten level despite his fourth-grade math abilities. Consequently, he ordered the Board to cover Freston's tuition at the Gaynor school.

The Board protested, eventually appealing the administrative orders to the federal court in the Southern District of New York. According to the Board, the plain language of IDEA relieved it of any obligation to pay Freston because his son bypassed public school altogether in favor of a private institution.

The Second Circuit vacated that judgment and asked the district court to reconsider in light of a recent case, Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006), which held that parents could seek reimbursement even if their children never attended a public school. The Board then asked the Supreme Court to weigh in.

The Board's case rests on the precise language of the IDEA, which states that "If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school, without the consent of or referral by the public agency, a court or hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." 20 U.S.C. Sec. 1412(a)(10)(C).

The Board argues -- and the district court agreed -- that because the boy's education began at the Gaynor private school, and he never received special education services from it or any other public agency, it need not cover his private school tuition. The Board has contended that the requirement is designed to entice parents to try public school services before decamping to private schools.

Freston counters that the overarching purpose of the IDEA is to ensure that every American child receives a free education appropriate to his needs. Forcing his child to attend an inadequate public school for a short time, merely to secure the right to reimbursement after an eventual private-school transfer, eviscerates that goal, he argues. Freston is relying on a Supreme Court precedent from two decades ago, School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985), in which the justices observed that "the Act was intended to give handicapped children both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives." Burlington, 471 U.S. at 372.

While Freston, who reportedly received an $85 million package when he was ousted as Viacom chief executive officer last year, hardly needs the Board's money, he has said that he is trying to vindicate a principle. The New York school board, on the other hand, is pursuing the case to protect its beleagured coffers. Michael Best, the general counsel of the district, has been quoted as saying the district has paid as much as $6.5 million a year to reimburse students who "unilaterally" reject public schools in favor of private placement.

It is no surprise that the case has drawn intense attention, pitting cash-strapped government entities against cash-strapped parents of children who need stepped-up classroom services. The United States has filed an amicus curiae brief on behalf of Freston, along with groups such as the International Dyslexia Association, Autism Speaks, and the National Disability Rights Network. The Council of the Great City Schools, the National School Boards Association, the American Association of School Administrators, the U.S. Conference of Mayors and the National League of Cities are among the groups supporting New York's school board.

###October 10, 2007

The Court issued a per curiam opinion affirming the Second Circuit opinion in the case. Justice Kennedy did not participate in the case, yielding a 4-4 vote and leaving the opinion below intact.Questions presented: Does the Individuals with Disabilities Education Act require that a student receive special education services at a public school before enrolling at a private school that better fulfills those needs in order to receive reimbursement for private school tuition?

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