Learning About Roberts and Alito: Forest Grove School District v. T.A.

The Supreme Court released Forest Grove Sch. Dist. v. T. A. today and in it found for the parents that their private school tuition should be reimbursed by the public school, even though the public school never made an attempt to provide FAPE in the first place. I think this is really the first education case in which we are feeling the full effects of Justices Roberts and Alito and, in particular, how those two justices are different than Justices Scalia and Thomas. Let me explain ...

 

The case concerned a high school student that was struggling. After his freshmen year the student was evaluated by the public school and the school concluded he did not have a disability. The academic results did not improve and, in the student's junior year, the parents became concerned and consulted private specialists to determine the cause of the academic struggles. The private evaluator diagnosed the student with ADHD and learning disabilities and recommended a private, residential, special education placement. The parents then enrolled him in a private academy. A few days later they informed the school and, after an evaluation, the school again found the student ineligible. The student was left in the private school for his senior year and the parents sought reimbursement for all those private school costs.

 

So, this is sort of a technical case, but I'll try to boil it down for us. This case basically came down to (1) statutory interpretation and (2) gut feeling on the purpose of IDEA and the effects of this policy.

 

First, statutorily this is a close call as IDEA does not really say what to do in instances where there simply was no FAPE provision at all. IDEA contemplates and instructs when a school tries and fails to provide FAPE, but not when a school evaluates that no FAPE is necessary in the first place, as it does in this case. So, if you want to get technical (and I have a variety of readers so I know some of you do), then the statutory provisions to consider in depth come from Section 1412(a)(10)(c). In particular read 1412(a)(10)(C)(i) against 1412(a)(10)(C)(ii). If you don't want to get so into the legalese, they generally say that publics should not have to pay for private school education if they provided FAPE, that is unless later that FAPE is determined inadequate by the courts. Justice Souter in dissent (with Scalia and Thomas) makes a good argument that the provision is pretty clear that first you have to try and fail with the public option - that trying the private option without getting a flat denial or inadequate FAPE does not warrant reimbursement. In this case, where they unilaterally placed in the junior year without first trying the public, were we to merely consider statutory interpretation it's hard to see how reimbursement is permitted under the language of IDEA. Of course, in these cases we usually don't merely consider the language by itself, and that is how Roberts and Alito are different than Scalia and Thomas.

 

Now, if you are to consider the practical effects of all this stuff and the policy effect it will have on children with disabilities, one is much more likely to find for the parents. Really, even though this is an important case in special education law, this is not life and death, especially in the Court's eyes who regularly deal with life and death. In all of the cases this ruling might apply to, the student is going to be a borderline special education student where he or she will be receiving some education in the regular education setting anyway. Really, it is only in very close calls that this case will even matter all that much. When you have (1) a close practical case like this, (2) a close statutory case like this and (3) there are feasible legal and policy interpretations on either side, Roberts and Alito came down on the side of sympathy to the law's original purpose and, frankly, sympathy to the plight of special education students and their parents. Stevens, writing for the majority in which Roberts and Alito joined, almost expressly states as much when he talks about the "remedial purpose of IDEA."

 

In the ability to consider a sympathetic position both to Congress and to plaintiffs we see a difference emerging between Roberts and Alito on one hand and Scalia and Thomas on the other. Scalia and Thomas would sentence themselves to death if that is what the language said in their mind, even in a close and ethically challenging case. They are proud of the fact that courts should not involve themselves in issues of policy or sympathy. Roberts and Alito take a somewhat more flexible approach in that when the language is plain it must be followed, but when it is not other considerations are warranted. Either result here could have been good or bad practically. A ruling for the school would embolden schools to flatly deny FAPE in the first place while a ruling for parents would, and will, encourage them to seek more costly unilateral placements that taxpayers will eventually have to fund. Considering the purpose of IDEA, the risk should be born by the taxpayers. And, frankly, I think this development in Robert's and Alito's judicial temperment is a good development for education generally and for students in particular (as long as you are a sympathitic student ... a.k.a. not Joseph Frederick). 

Comments

[APSJ]

I appreciate the examination of what this decision says about Alito and Roberts, and the excellent analysis of the issue involved. I do want to point out that the assumption that this case will only apply to close cases, students who could reasonably be classified as eligible or not, assumes that all districts act in good faith when making such determinations. There are a number of circumstances in which children with severe disabilities could be denied special education entirely, such as where the District blames socio-economic factors, or as in this case, drugs, for severe emotional or behavioral problems. This case could have created an incentive for unscrupulous Districts to expand such tactics had it gone the other way.