School Choice & Charters

Court Is Split on IDEA Private-Placement Case

By Mark Walsh — October 11, 2007 3 min read
  • Save to favorites
  • Print

The lone education case granted so far in the U.S. Supreme Court’s new term came to a quick conclusion this week as the justices divided equally over an appeal from the New York City school system about paying for private school placements under the main federal special education law.

The 4-4 tie in the case means that a federal appeals court ruling in favor of a New York City parent was affirmed without an opinion from the justices. The result, which was made possible by Justice Anthony M. Kennedy’s recusal from the case, carries little weight as a nationwide precedent.

At issue in Board of Education of New York City v. Tom F. (Case No. 06-637) was a question under the Individuals with Disabilities Education Act: Must parents of children in special education give public schools a try before enrolling such students in private schools and then seeking tuition reimbursement at public expense?

The case was argued Oct. 1, the first day of the court’s term. The outcome, announced Oct. 10, upholds a ruling by the U.S. Court of Appeals for the 2nd Circuit, in New York City, that the IDEA does not require children to have attended public schools before their parents can seek reimbursement for a so-called unilateral private school placement—a decision to enroll a child in private school without the assent of public school authorities.

The tie in the Supreme Court is a victory for Thomas E. Freston, a former top executive of Viacom Inc., who had battled the New York City school system over the proper education for his son, Gilbert, who has learning disabilities. At stake in the high court case was $21,819 in private school tuition for the student for the 1999-2000 school year. (“High Court Case Could Rein In Private Placements Under IDEA,” Sept. 26, 2007.)

“I am thrilled with this decision,” Mr. Freston said in an Oct. 10 statement. “Where a public school district does not offer an appropriate education to a child with learning disabilities, the law makes the opportunity available for private school tuition reimbursement. The court reaffirmed that fundamental principle today.”

Paul G. Gardephe, the lawyer who argued Mr. Freston’s case, pointed out that the appeals court’s ruling will remain in effect in the states making up the 2nd Circuit: Connecticut, New York, and Vermont.

The outcome is “clearly not mandatory outside the 2nd Circuit,” he said, although he noted that the U.S. Court of Appeals for the 11th Circuit, in Atlanta, has adopted the same view that public school enrollment is not required as a prerequisite to private school reimbursement under the IDEA.

Separate Appeal

The 1.1 million-student New York City system had argued that some parents don’t intend to enroll their children with disabilities in public schools but submit them for special education evaluations before placing them in private schools and then seeking public reimbursement.

During the oral arguments in the case, the justices spent considerable time weighing whether a 1997 amendment to the IDEA was meant to require children to be enrolled in public schools before their parents could seek private school tuition reimbursement.

As is its custom with such divided outcomes, the Supreme Court did not disclose how each participating justice voted. It also remained unclear why Justice Kennedy had removed himself from participation in the case.

Leonard J. Koerner, who represented the school system, said that he has argued six times before the justices as an appellate lawyer for New York City, and that this was the second time a case of his had ended in a tie. The other was in a 1988 case involving the city’s police department, when only eight justices participated because of a vacancy on the court.

“When you have an even number, a tie is always a possibility,” he said in an interview. “These are close cases.”

It is possible that the Supreme Court could return to the issue of private school placements under the IDEA sooner rather than later. Another IDEA appeal pending at the court, in a case from the Hyde Park school district in New York state, raises the same legal issue.

The high court, assuming Justice Kennedy did not have the same conflict that required his recusal in the New York City case, could grant review in Board of Education of the Hyde Park Central School District v. Frank G. (No.06-580). The court had placed the Hyde Park district’s appeal on the agenda of its Oct. 12 private conference.

If that case were granted review, there would be little doubt that Justice Kennedy would be the focus of the two sides’ legal briefs and arguments.

A version of this article appeared in the October 17, 2007 edition of Education Week as U.S. Supreme Court Divides in IDEA Private-Placement Case

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
College & Workforce Readiness Webinar
From Exposure to Experience: Designing Accessible Work-Based Learning
Learn how schools can create meaningful experiences that help every student build skills, connections, and a clearer path to their future.
Content provided by Project Lead The Way
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
School & District Management Webinar
A Tale of Two School Districts: Forecasting Enrollment
Forecasting enrollment is hard. Here’s how two different districts are navigating times of change with data that considers the whole picture.
Content provided by Zonda Education
Reading & Literacy K-12 Essentials Forum Strategies to Create a Culture of Reading in Schools
Join this free virtual event to learn how teachers and school district leaders ensure students are reading enough.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

School Choice & Charters Explainer What Is the Federal Scholarship Tax Credit, and How Does it Work?
The first national school choice program starts in 2027. Answers to frequently asked questions.
9 min read
Image of a neighborhood of school buildings, house, government buildings, and a money symbol in the middle.
Trodler/iStock/Getty
School Choice & Charters Opinion School Choice Champion Highlights K-12 Disruptors
Education advocate Jeanne Allen encourages reform that centers human flourishing.
•
5 min read
The United States Capitol building as a bookcase filled with red, white, and blue policy books in a Washington DC landscape.
Luca D'Urbino for Education Week
School Choice & Charters Democratic Governors Have Questions About the Federal School Choice Program
A letter from five Democratic governors signals some movement as state leaders decide whether to opt in.
5 min read
Mayor Michelle Wu and Gov Maura Healey arrive at the Otis Elementary School after Wu endorsed Healey in her reelection bid.
Massachusetts Gov. Maura Healey appears in Boston on Oct. 1, 2026, as part of her reelection campaign. Healey is one of five Democratic governors who sent a letter to Treasury Secretary Scott Bessent seeking more clarity on the new federal school choice program before deciding whether to opt her state in.
Stuart Cahill/Boston Herald
School Choice & Charters Opinion Don’t Be Fooled by Claims That Tax-Credit Scholarships Can Help Public Education
The latest federal school choice scheme is a Trojan horse, argue Miguel Cardona and Robert Kim.
Miguel Cardona & Robert Kim
•
5 min read
Collage-style illustration of tall vertical clippings of green lockers, a school bus and a wooden desk, all split apart. In between the images are clippings of text from the IRS webpage that has information about the Federal Scholarship Tax Credit.
Illustration by Emily Wright for Education Week + Getty