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
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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
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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)