Second Circuit on IDEA Private-School Reimbursement

Late last week, the Second Circuit issued an important decision in Frank G. v. Board of Education of Hyde Park. The plaintiffs were the parents of a child who, while in fourth grade in a private elementary school, was diagnosed with learning disabilities. The school district prepared an IEP, which the parents considered inadequate (mainly because the child's class would be much larger than psychologists had said was appropriate). The parents thus placed the child in a new private school and sought reimbursement. In the state administrative proceedings, the school district conceded that its IEP had been inadequate, buit it argued that the private school placement was also inappropriate. Agreeing, the state administrative review officer denied reimbursement.

The parents brought a suit in the federal district court for the Southern District of New York, where Judge Brieant granted reimbursement. Based on evidence that was not available to the state review officer (viz., the child's progress at the private school after the state agency decision), Judge Brieant determined that the private-school placement was in fact appropriate.

The Second Circuit affirmed that determination, and then went on to decide an issue with even broader significance. The school district argued that language in the 1997 IDEA Amendments gave it a complete defense to the claim for reimbursement. That language, from 20 U.S.C. § 1412(a)(10)(C)(ii), authorizes reimbursement to the parents of a child, "who previously received special education and related services under the authority of a public agency" and who enrolled the child in a private elementary or secondary school without the consent or referral of the private agency, "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 enrollment." As the school district read that language, a parent is not entitled to reimbursement for a private school placement unless she first tried out the IEP the school district offered and found it wanting. Because the parents in this case had never tried out the IEP, the school district argued that they were not entitled to reimbursement (even though the IEP was inadequate and the private school placement was appropriate).

The court rejected the school district's argument. The court concluded that the language of Section 1412(a)(10)(C)(ii) raises no negative inference that would deny reimbursement to parents who place their kids in private school without waiting for a concededly inadequate IEP to fail. Such an inference would be inconsistent with the statute's general language authorizing "appropriate" remedies for IEP violations -- language that the Supreme Court has read as authorizing a requirement of reimbursement in cases just like this one. And requiring parents to wait out a year of failure before choosing a private-school placement would be inconsistent with the purposes of the statute and lead to absurd results.