Education Law Publications

DUFF, WHITE & TURNER, L.L.C.
Attorneys and Counselors at Law

SCHOOL LAW
"ISSUE OF THE MONTH"
NOVEMBER 2007

Private School Tuition Reimbursement
Without Prior Enrollment in a Public School District

In a closely watched case that involves tuition reimbursement under the Individuals with Disabilities Education Act (IDEA), a New York school district will be required to reimburse a parent for his child's private school tuition, even though the student had never enrolled in the school district. Although the case was heard by the U.S. Supreme Court, the decision is only applicable in the Second Circuit, the federal court circuit that includes New York. However, the case has implications for tuition reimbursement cases that may arise in the Fourth Circuit, the federal court circuit that includes South Carolina, or that may come before the Supreme Court from other federal circuits.

In Board of Education v. Tom F., a father sought reimbursement from the local school district for the cost of his learning-disabled son's private school tuition, even though the child had never been enrolled in the district. The school district previously had offered the child an individualized education program, which the district believed was appropriate under the provisions of the IDEA. Following a hearing over the reimbursement issue, a local hearing officer ordered the school district to make the reimbursement, and the order was upheld by the state-level hearing officer on the grounds that the program offered by the district was not appropriate. The school district sought review in federal court, which overturned the state hearing officer's ruling on the grounds that a parent is not entitled to tuition reimbursement if the parent unilaterally places a child in a private school without the child ever having been served by the district.

The father appealed the court's decision to the Second Circuit Court of Appeals. Because the Second Circuit recently had decided the same issue in favor of the parent in another case, Frank G. v. Hyde Park, the Second Circuit instructed the lower court to reconsider its decision and use Frank G. as its guide. In Frank G., the court had reasoned that parents should not have to subject their learning-disabled children to a possible inappropriate placement in a public school before placing the child in a private school. Without waiting for the lower court to act on the Second Circuit's directive, the school district petitioned the U. S. Supreme Court to hear the Tom F. case.

Courts in other federal circuits have reached opposite conclusions when considering this same tuition reimbursement issue. Thus, when the Supreme Court agreed to hear the Tom F. case, school district officials around the country were hopeful the Supreme Court would render a decision that would clarify the matter for all school districts. Unfortunately, however, the Supreme Court justices could not reach a majority decision, with four justices voting to require the reimbursement and four voting that reimbursement was not warranted. The ninth justice, Justice Kennedy, did not take part in the decision based on a conflict of interest.

Because of the Supreme Court's evenly divided vote, the Second Circuit Court of Appeals' decision in Tom F. stands and the lower court must still issue a ruling in the case, presumably requiring the school district to reimburse the father for his son's private school tuition. Any ruling in the Second Circuit, however, is only applicable in that federal circuit. Other federal circuits are still free to interpret the language of the IDEA as they see fit, unless and until the Supreme Court rules on the issue. The Eleventh Circuit, for instance, agrees with the Second Circuit and has ruled that parents of special education students who have never attended public school can receive private school tuition reimbursement if the district's proposed placement fails to provide the student with an appropriate program. On the other hand, the First Circuit has ruled that a child must have been receiving special education services at the time of withdrawal from public school in order for the parents to later be awarded reimbursement for private school tuition.

The Fourth Circuit, which as previously noted includes South Carolina, has not yet had an occasion to rule on this issue. South Carolina's recently amended State Board of Education special education regulation, 24 S.C. Code Ann. Regs. 43-243, however, provides relevant guidance. Regulation 43-243 states that if a school district makes an appropriate program available to an eligible student, but the parents elect to place the child in private school, the district is not required to pay the cost of the child's tuition. The child need not ever have attended school in the district as long as the district made available to the child a proposed, appropriate program. If a child has previously been served in a school district, however, and the parents then enroll the child in private school without the district's consent or referral, the regulation states that the parents are not necessarily entitled to reimbursement. A district may be required to reimburse the parents in such a situation only if it is found that the district did not make an appropriate program available in a timely manner prior to the private placement, and it is found that the private school provides an appropriate program.

If you have any questions about private placement issues, or any other matters related to serving students under the provisions of the IDEA, please do not hesitate to contact us at 1-800-639-1677.