Interpreting the 1997 Amendment to the IDEA: Did Congress Intend to Limit the Remedy of Private School Tuition Reimbursement for Disabled Children?

Fordham Law Review, Aug 2018

The Individuals with Disabilities Education Act (IDEA) requires school districts to fund private school placements for disabled children who cannot be educated appropriately in public school. This Note explores the conflict over whether private school tuition reimbursement should be available under the IDEA to parents who place their disabled children in private school without previously receiving special education from a public agency. The conflict hinges on whether a 1997 amendment to the IDEA foreclosed the equitable considerations previously utilized by the courts to determine whether tuition reimbursement was appropriate and limited the remedy to cases where the child previously received public special education services. This Note argues that the 1997 amendment to the IDEA did not limit the remedy of tuition reimbursement. It suggests that the U.S. Supreme Court uphold the remedy of tuition reimbursement when appropriate, whether or not the disabled child previously received public special education services, when it decides the issue later this Term.

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4450&context=flr

Interpreting the 1997 Amendment to the IDEA: Did Congress Intend to Limit the Remedy of Private School Tuition Reimbursement for Disabled Children?

Disabled Children? Emily S. Rosenblum 0 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact Recommended Citation Emily S. Rosenblum, Interpreting the 1997 Amendment to the IDEA: Did Congress Intend to Limit the Remedy of Private School Tuition Reimbursement for Disabled Children?, 77 Fordham L. Rev. 2733 (2009). Available at: http://ir.lawnet.fordham.edu/flr/vol77/iss5/19 - Article 19 INTERPRETING THE 1997 AMENDMENT TO THE IDEA: DID CONGRESS INTEND TO LIMIT THE REMEDY OF PRIVATE SCHOOL TUITION REIMBURSEMENT FOR DISABLED CHILDREN? Emily S. Rosenblum* The Individuals with DisabilitiesEducation Act (IDEA) requires school districtstofund private school placementsfor disabledchildren who cannot be educated appropriatelyin public school. This Note explores the conflict over whether private school tuition reimbursement should be available under the IDEA to parents who place their disabled children in private school without previously receiving specialeducationfrom a public agency. The conflict hinges on whether a 1997 amendment to the IDEA foreclosed the equitable considerationspreviously utilized by the courts to determine whether tuition reimbursement was appropriateand limited the remedy to cases where the childpreviously receivedpublic special education services. This Note argues that the 1997 amendment to the IDEA did not limit the remedy of tuition reimbursement. Itsuggests that the U.S. Supreme Court uphold the remedy of tuition reimbursement when appropriate,whether or not the disabledchild previously receivedpublic special education services, when it decides the issue laterthis Term. INTRODUCTION "'Weak minded,"'1 "difficult to educate," 2 and "moron of a very low type... who is incapable of absorbing knowledge" 3 are just a few of the justifications given by states attempting to exclude disabled children from public schools in the late nineteenth and early twentieth century. 4 Prior to 1975, there were no federal laws requiring states to provide disabled students with special education services. 5 Although a minority of states * J.D. Candidate, 2010, Fordham University School of Law. I would like to thank Professor Aaron Saiger for his guidance and insight throughout this process. Special thanks to my friends and family, especially my mom and dad, my grandma, and Katie for their unconditional love and support, and to Josh for his patience and encouragement. 1. CHARLES J. Russo & ALLAN G. OSBORNE, JR., ESSENTIAL CONCEPTS & SCHOOLBASED CASES IN SPECIAL EDUCATION LAW 4 (2008) (quoting Watson v. City of Cambridge, 32 N.E. 864 (D. Mass. 1893)). 2. Id. 3. Bd. of Educ. v. State ex rel. Goldman, 191 N.E. 914, 916 (Ohio Ct. App. 1934). 4. See Russo & OSBORNE, supra note 1, at 4-5. 5. Id .at 4. independently enacted legislation requiring public schools to educate disabled children, 6 more often, public schools excluded disabled children completely. 7 As a result, public schools across the country did not satisfy the "educational needs of millions of children with disabilities."'8 Many of these children grew up without programs and services that could have helped them manage their disabilities and lead productive, independent 9 lives. Significant progress has been made since the federal government intervened and passed legislation to protect the educational rights of children with disabilities in 1975.10 This legislation, now known as the Individuals with Disabilities Education Act (IDEA), has given many disabled children access to public education and led to sweeping reforms in special education policy."I In order to receive federal funding for special education programs under the IDEA, public schools are required to provide all disabled children with a "free appropriate public education" (FAPE). 12 The IDEA outlines elaborate procedures for identifying, evaluating, and determining appropriate placements for disabled children.13 When a school district does not have the resources or capabilities to adequately educate a disabled child in a public school, the district must propose and fund an appropriate private school placement for the child. 14 2009] The IDEA also sets forth a detailed set of procedures for cases where a school district and the parents of a disabled child disagree over whether the public school can offer the child an appropriate educational placement. 15 If the school district proposes a public school placement for a disabled child, but the parents of the child think private school is necessary, the parents can request a due process hearing and eventually appeal to the courts to determine the appropriate placement for their child. 16 This process can often take several months or years 17 and parents sometimes opt to unilaterally pla (...truncated)


This is a preview of a remote PDF: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4450&context=flr

Emily S. Rosenblum. Interpreting the 1997 Amendment to the IDEA: Did Congress Intend to Limit the Remedy of Private School Tuition Reimbursement for Disabled Children?, Fordham Law Review, 2018, Volume 77, Issue 5,