Amicus Curiae Brief — Board of Ed. of City School Dist. of New York v. Tom F.

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No. 06-637 eS ,5. "8S g-S"— TEs tHe

In the Supreme Court of the GAnited States

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT

OF THE CITY OF NEW YORK, PETITIONER

Vv.

TOM F., ON BEHALF OF GILBERT F., A MINOR CHILD

ON wRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

WAN J. Kim

— ene Assistant Attorney General

reneral Counse .

, GREGORY G. GARRE

Department of Education eer

Washington. D.C. 20202 Deputy Solicitor General

JONATHAN L. MARCUS

Assistant to the Solicitor

General

DIANA K. FLYNN

LISA J. STARK

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Individuals with Disabilities Education Act

permits an award of private school tuition reimbursement

when a child with a disability has been denied a free appro-

priate public education but the child has not “previously

received special education and related services under the au-

thority of a public agency.” 20 U.S.C. 1412(a)(10)(C)(ii).

(I)

TABLE OF CONTENTS

Page

id ees 1

Ey A el oe ee aN ee Ae 1

6 sda cad eileddbenetasudeebanke 6

Argument:

Private school tuition reimbursement may be awarded

to the parents of.a-child who has not previously received

public special education services when the child has

been denied a free appropriate public education ......... 8

IDEA explicitly guarantees a free appropriate

public education to “all children with disabilities” .. 10

B. As this Court has held, IDEA’s “appropriate”

relief provision authorizes tuition reimbursement

for children denied a free appropriate public

Se rdutbbuswskk dare wecidbentetavtasieses 11

C. Section 1412(a)(10)(C)(ii) does not deprive a

court of its authority to grant tuition reimburse-

ment in circumstances not described in that

SID 5066s esecssadoess Rigukaleadsscadceses 14

D. Petitioner’s reading works an implied repeal ...... 17

E. Petitioner’s reading conflicts with key

PUOVENIOMS GF EO GUFUCUITS . . 5.5 ccc cc ccc ccceess 19

F. Petitioner’s reading contravenes the express

purpose of IDEA and produces absurd results ..... 23

G. The formal position of the agency charged with

implementing IDEA is entitled to deference ...... 26

H. Pennhurst does not assist petitioner ............. 28

PEE eini-G Aubenemedns Sb460k be Sechekees oeanacvers 30

PT J cutis pavdcet dee seeeeeipenndesbabedebabeune la

(111)

TABLE OF AUTHORITIES

Cases: Page

Barnes v. Gorman, 536 U.S. 181 (2002) ............... 29

Baltimore Bd. of Comm'rs v. Taylorch, 395 F. Supp.

a a rn a ann ill 23

Board of Educ. v. Rowley, 458 U.S. 176 (1982) 2.2... 6... 1

Branch v. Smith, 588 U.S. 254 (2003) ................. 18

Carter v. Florence County Sch. Dist., 950 F.2d 156

PE ae ods Candy sank dndn wktekedsukhy 13

Chevron USA. Inc. v. NRDC, 467 U.S.C. 837 (1984)... 26

Connecticut Natl Bank v. Germain, 503 U.S. 249

CAREC C NE Cis ee AtE sem aknd cos care hedadasees 19

Edwards-White v. District of Columbia, 785 F. Supp.

I ED Acne eeadceysepeeess bhaubaneans 14

Florence County Sch. Dist. Fourvy. Carter, 510 U.S. 7

Satan cmebhawhess candkeeeeeeikasesene's passim

Frank G. v. Board of Educ., 459 F.3d 356 (2d Cir.),

petition for cert. pending, No. 06-580 (filed Oct. 23,

EE dha cdehehesleeh Keun eee ceeeann enews Cones 5

Gadsby v. Grasmick, 109 F.3d 940 (4th Cir. 1997) ...... 14

Green v. Bock Laundry Mach., Co., 490 U.S. 504

AG ed cs weueuekhNseN cee eeneeesiauteoueeen 23

Griffin v. Oceanic Contractors, Ine., 458 U.S. 564

PP ctatduscvheecssn sauwee vinss6nene eek sedn ce

Hanover Bank v. Commissioner, 369 U.S. 672 (1962) ... 15

Ivan P. v. Westport Bd. of Educ., 865 F. Supp. 74

(D. Conn. 1994), aff'd, 101 F.3d 686 (2d Cir. 1996) .... 14

Jackson vy. Birmingham Bad. of Educ., 544 U.S. 167

acid anawhes cens beeuheedasee susebaeenss &, 29

Cases—Continued: Page

Koons Buick Pontiac GMC, Inc. v. Nigh, 453 U.S. 50

Ge ewidcvcscsvnsensecaisacheeaveskadswanesees 17

Lapides v. Coto, 559 Educ. Handicapped L. Rep. 387

SEE nodes cane aceneneseksees cesea weber 14

Long Island Care at Home, Ltd. v. Coke, 127 S. Ct.

PD ccccadéucintndavedadutbissuensssencen 28

Mallard v. United States Dist. Ct., 490 U.S. 296 (1989) .. 19

Mary P. v. Illinois State Bd. of Educ., 919 F. Supp.

i. of & § SSE pee Kipee ee 14, 24

M.M. v. School Bd., 437 F.3d 1085 (11th Cir. 2006)..... 22

National Ass’n of Home Builders v. Defenders of

Wildlife, 127 S. Ct. 2518 (2007) ................. 18, 26

Pennhurst Sch. & Hosp. v. Halderman, 451 U.S. 1

CUED och dccbvasdevéoceedduaetebeuckesnannsseees 28

Posades v. National City Bank, 296 U.S. 497 (1936) .... 18

Schaeffer v. Weast, 546 U.S. 49 (2005) ........... 22, 24, 25

School Comm. of the Town of Burlington v.

Department of Educ., 471 U.S. 359 (1985) ...... passim

Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493

EI SUED ss Kaccreceascumiaaenscbenseeceues 14

Shirk v. District of Columbia., 756 F. Supp. 31

Gs SED ovine v6.40 nivewensneubceweshedescaent 14

United States v. Mead Corp., 533 U.S. 218 (2001) ....... 28

United States v. United Foods, Inc., 533 U.S. 405

Serr yr or ree rrr 28

Varity Corp. v. Howe, 516 U.S. 489 (1996) .......... 15,17

Watt v. Alaska, 451 U.S. 259 (1981) .............0 eee 18

Whitman v. American Trucking Assn’s, 531 U.S. 457

SEED s 600 téccnees hoes ecenensedeucsheseanseaee 28

Cases—Continued: Page

Winkelman v. Parma City Sch. Dist., 1275S. Ct. 1994

SE ee passim

Zuni Pub. Sch. Dist. No. 89. Department of Educ.

EE Oe 17

Constitution, statute and regulations:

U.S. Const. Art. I, § 8, Cl. 1 (Spending Clause) ....... 8, 28

Individuals with Disabilities Education Act of 2004,

Pub. L. No. 108-446, 118 Stat. 2647 (20 U.S.C. 1400

SPUN SUG ObSbsr ese lec eccecccerocccecoceceécoes ]

20 U.S.C. 1400001 MA) ............6.-- 1, 10, 23, la

cv cacccccteseceessecaies 2, 1a

EY cthcc beseech ideeseonbanses 21, 2a

EE 2, 20, 2a

dd chicos cdbedsdes bee eniaeee ]

ee ee ek aed eo hendadiees 28

ee TD 29, 3a

de passim, 3a

i dc6 so Gecceccocevécese 20, 3a

20 U.S.C. 1412 aM BMI) ........... 200. 2, 10, 3a

20 U.S.C. 1412(a) 1 BX) «2. eee ee. 2,10, da

20 U.S.C. 1412(aX3MA) ................ 2, 10, 22, 4a

i on on doen den keeneew es 1,3

EE ee l

Er 25

20 U.S.C. M12(aOMAMGMDATD 2.0.2. 1]

20 U.S.C. 1412(aX OMANI) «2. ee 2, 10, 22. da

Vil

Statute and regulations—Continued: Page

20 U.S.C. 1412(aX OKC) ......... eee rece eee 14, 5a

20 U.S.C. 1412(a(lO)(C)i) ... 2. ee eee 2, 7, 16, 5a

20 U.S.C. 1412(a)(10)(CYili) ........----. passim, 5a

20 U.S.C. 1412(a(10)(C)iii) ..........-... 17, 19, 6a

ic cendeatenedasecodscdteesees 3, 10

i Mn. J. ce, scucveseeevecessseueeeuse 3

i tweet eeagibeeeeeesenewed 3, 10

ED ivcocncccsonscescesoneses 3

iE ci csccstentensdhes éueewne 12

Sn . cds ccigcpsecsoenssnsedeunt 10

ED cscccdcctcccstenssddansen 3

DE soncescocesoenssetesueeauene 3

Ps IED cnc cccceccccescscevees 3, 11

20 U.S.C. 1415(i2)(B)fili) .. 2... ee eee eee 27, 9a

20 U.S.C. 1415G)(2)(C)ili) ... eee eee passim.

OREN “wégcanccecconcesccencsens 21

34 C.F.R.:

Eo: ccesacensideéeechensesonseaaete 11

i a aan ea ll

Miscellaneous:

I ED cccccccccccssccesoneenes 1, 27

Ue PO Be GRP GED cece cccccccccceccscccces 1,27

J. Green and M. Winters, Debunking a Special

Education Myth, Educ. Next, Spring 2007 ......... 25

INTEREST OF THE UNITED STATES

This case concerns whether the parents of a child with a

disability who has not “previously received special education

and related services under the authority of a public agency”

(20 U.S.C. 1412(a)(10)(C\ii)) are eligible under the Individu-

als with Disabilities Education Act of 2004 (IDEA or Act) for

an award of private school tuition reimbursement when a

court determines that the child has been denied a free appro-

priate public education and that such reimbursement is appro-

priate. The Department of Education administers IDEA and

has authority to promulgate regulations necessary to ensure

compliance with the Act. See 20 U.S.C. 1406. The Depart-

ment has taken the position in commentary accompanying

final regulations that IDEA authorizes an award of tuition

reimbursement in such circumstances. 71 Fed. Reg. 46,599

(2006); 64 Fed. Reg. 12,602 (1999). The United States there-

fore has a substantial interest in the question presented.

STATEMENT

1. IDEA provides federal grants to States for assistance in

the education of children with disabilities and conditions such

funding upon a State’s compliance with extensive goals and

procedures.’ The Act requires recipients of federal funding

“to ensure that all children with disabilities have available to

them a free appropriate public education,” 20 U.S.C.

1400(d)(1)(A), including the special-education services neces-

sary to meet the particular needs of each child with a disabil-

ity. See 20 U.S.C. 1412(a)(4); see also 20 U.S.C. 1412(a)(5);

see generally Board of Educ. v. Rowley, 458 U.S. 176, 200-203

(1982). The Act requires States to provide a free appropriate

' Congress reauthorized and amended IDEA in 2004. See Individuals with

Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat.

2647 (20 U.S.C. 1400 et seg.). Unless otherwise indicated, citations are to the

statute as amended in 2004.

(1)

publie education “to all children with disabilities residing in

the State between the ages of 3 and 21, inclusive,” 20 U.S.C.

1412(a)(1)(A), subject to only two limitations relating to spe-

cial state rules “respecting the provision of public education

to children” ages “3 through 5 and 18 through 21,” 20 U.S.C.

1412(a1) Bi), and to incarcerated persons aged 18 through

21, 20 U.S.C. 1412(a)1)( Bi).

The Act specifies that the special education services must

be “provided at public expense,” 20 U.S.C. 1401(9)( A), and

“at no cost to parents,” 20 U.S.C. 1401(29). The Act “contem-

plates that [special] education will be provided where possible

in regular public schools, * * * but * * * in private

schools at public expense where this is not possible.” School

Comm. of the Town of Burlington v. Department of Educ.,

471 U.S. 359, 369 (1985) (Burlington). The Act also contains

a “(cJhild find” provision that requires States to ensure

that “[ajll children with disabilities residing in the State, in-

cluding * * * children with disabilities attending private

schools,” are “identified, located, and evaluated.” 20 U.S.C.

1412(a)(3)(A); see 20 U.S.C. 1412(a)(10)( Adi).

The Act specifies that a local school district need not pay

the cost of private education of a child with a disability “if that

agency made a free appropriate public education available to

the child and the parents elected to place the child in such

private school or facility.” 20 U.S.C. 1412(a)(10)(C)i).. The

Act also states that a court or hearing officer may require a

state agency to reimburse parents for the cost of private

schoo] for a child with a disability, “who previously received

special education and related services under the authority of

a public agency,” if “the court or hearing officer finds that the

agency had not made a free appropriate public education

available to the child.” 20 U.S.C. 1412(a)(10C (ii). The Act

further provides that in an action brought under IDEA a

court “shall grant such relief as the court determines is appro-

priate,” 20 U.S.C. 1415(1)(2)(C)(iii), including—this Court has

held—private school tuition reimbursement in the case of a

child with a disability who was denied a free appropriate pub-

lic education. Florence County Sch. Dist. Four v. Carter, 510

U.S. 7, 15-16 (1993); Burlington, 471 U.S. at 369-371.

IDEA affords parents an array of procedural safeguards.

See.20 U.S.C. 1414, 1415; see also Winkelman v. Parma City

Sch. Dist., 127 S. Ct. 1994, 2000-2002 (2007). The Act requires

local school systems to develop an individualized education

program (IEP) for each child with a disability in consultation

with parents and in accordance with statutory requirements.

See 20 U.S.C. 1412(a)(4), 1414(d). If parents are not satisfied

with an IEP, they may file a complaint with the State or local

educational agency “with respect to any matter relating to the

identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education

to such child,” 20 U.S.C. 1415(b)(6)(A), and obtain “an impar-

tial due process hearing,” 20 U.S.C. 1415(f)(1)(A). Any party

aggrieved by a decision at the final administrative stage may

“bring a civil action” in federal district court or state court of

competent jurisdiction. 20 U.S.C. 1415(i)(1) and (2)(A).

2. This case arises out of a complaint filed under IDEA by

respondent Tom F., the father of Gilbert F., a child with a

disability, against petitioner, arguing that Gilbert had been

denied a free appropriate public education and seeking pri-

vate school tuition reimbursement. In the fall of 1995, respon-

dent enrolled Gilbert in kindergarten at the Stephen Gaynor

School (Gaynor), a private school that specializes in educating

children with learning disabilities. Pet. App. Al-A2; J.A. 66a-

67a. In 1996, respondent invoked Gilbert’s right under IDEA

to receive special education services from petitioner by re-

questing that Gilbert be evaluated and provided with an IEP.

Pet. 2. Petitioner evaluated Gilbert and classified him as

learning disabled. J.A. 67a. In 1997 and 1998, petitioner en-

tered into two agreements, titled Stipulation of Settlement

and Discontinuance, to pay Gilbert’s tuition at Gaynor for

each of those years. Pet. Br. 7; C.A. App. 5-11, 14-20.

Petitioner scheduled a meeting of the Committee on Spe-

cial Education (CSE) for May 28, 1999, to review Gilbert's

IEP and recommend an appropriate placement for him for the

upcoming 1999-2000 school vear. J.A. 45a. Because a parent

was unable to attend the meeting on that date, it was post-

poned and reconvened on June 23, 1999. No one from Gaynor

was able to attend the rescheduled meeting, including Gil-

bert’s special education teacher. J.A. 46a, 52a, 70a. On July

29, 1999, roughly a month before the beginning of the new

school year, petitioner mailed respondent notice that peti-

tioner recommended that Gilbert be placed in a special educa-

tion classroom in a public school, the New York City Lower

Lab School for Gifted Education, for the upcoming school

vear. J.A. 46a. Respondent disagreed with the proposed

placement and kept Gilbert at Gaynor. /bid.

3. Respondent sought administrative review of petitioner's

recommendation and reimbursement for Gilbert's tuition at

Gaynor for the 1999-2000 school year. J.A. 19a. On April 6,

2001, following hearings, an impartial hearing officer issued

a decision granting respondent's request for reimbursement.

J.A. 19a-36a. The hearing officer found that petitioner had

failed to offer Gilbert an educational program that met his

needs, that Gaynor was an appropriate program for Gilbert,

and that respondent “did everything asked of him * * * in

regard to this matter.” J.A. 34a-55a. Petitioner appealed and

a state review officer affirmed those findings, concluded that

respondent was entitled to tuition reimbursement, and dis-

missed the appeal. J.A. 66a-76a.

4. Petitioner brought an action in the United States Dis-

trict Court for the Southern District of New York challenging

the State's administrative decision. Pet. 9. On January 3,

2005, the district court granted petitioner’s motion for sum-

mary judgment. Pet. App. Al-Al3. Pointing to Section

1412(a)(10)(C){ii) of IDEA, the district court ruled “that

where a child has not previously received special education

from a public agency, there is no authority to reimburse the

tuition expenses arising from a parent’s unilateral placement

of a child in private school.” /d. at A8. Because the district

court viewed Section 1412(a)(10)(C)(ii) as a categorical bar'to ~

reimbursement, it did not consider the administrative finding

that Gilbert was denied a free appropriate public education.

5. On August 9, 2006, the court of appeals vacated the dis-

trict court’s judgment and remanded the case for further pro-

ceedings in light of Frank G. v. Board of Educ., 459 F.3d 356

(2d Cir.}, petition for cert. pending, No. 06-580 (filed Oct. 23,

2006). In Frank G., the Second Circuit held that IDEA does

not “establish a threshold requirement that a disabled child

must have previously received public special education and

related services in order to be eligible for reimbursement” for

the cost of private school. J.A. 85a.

The court of appeals explained in Frank G. that Section

1412(a)(10)(C)(ii) “does not say that tuition reimbursement

is only available to parents whose child had previously re-

ceived special education and related services from a public

agency, nor does it say that tuition reimbursement is not

available to parents whose child had not previously received

special education and related services.” J.A. 97a. The court

further reasoned that reading that language into Section

1412(a)(10)(C)(ii) would conflict with other provisions of the

Act, including the Act’s broad equitable relief provision, J.A.

98a-100a, and lead to the “untenable” result that parents

would have “to jeopardize their child’s health and education

in this manner in order to qualify for * * * reimbursement.”

J.A. 106a.

SUMMARY OF ARGUMENT

When a child with a disability has been denied a free ap-

propriate public education, IDEA authorizes an award of pri-

vate school tuition reimbursement regardless of whether the

child previously received public special education services.

The centerpiece of |1DEA is its guarantee of a free appro-

priate public education for “all children with disabilities.” 20

U.S.C. 1412(ay1)(A). As this Court has twice unanimously

held, IDEA’s broad “appropriate” relief provision—which

directs a court to “grant such relief as [it] determines is ap-

propriate,” 20 U.S.C. 1415(i)(2)(C )(iii)—authorizes a court to

award private school tuition reimbursement to the parents of

a child with a disability who unilaterally place their child ina

private school pending a proceeding in which they prove that

a proposed IEP was inadequate. Carter, 510 U.S. at 15-16;

Burlington, 471 U.S. at 369. A contrary conclusion, the Court

has explained, would require parents to “go along with the

|proposed| IEP to the detriment of their child if it turns out

to be inappropriate or pay for what they consider to be the

appropriate placement,” and that, in turn, would deprive par-

ents and children with disabilities of the Act's central guaran-

tee of a “free appropriate public education.” /d. at 370.

Section 1412(a)(10)(C)(ii), which was enacted as part of the

1997 amendments to IDEA, addresses the most common situ-

ation in which private school tuition reimbursement is sought

—/.e., With respect to children with disabilities who previously

received public special education services. The provision,

however, neither explicitly nor impliedly eliminates the pre-

existing reimbursement remedy for parents of a child who, for

whatever reason, has not previously received public special

education services. To the contrary, the language of Section

1412(a)(10)(C (ii) is permissive, rather than restrictive, and it

does not place any limit on the authority of a court to grant

appropriate relief in other circumstances. Moreover, reading

Section 1412(a)(10)(C){ii) to have that effect would contradict

the Act’s express guarantee of a free appropriate public edu-

cation to “all children with disabilities”; conflict with other

provisions of the Act that confirm that the State’s obligation

to provide a free appropriate public education is not depend-

ent on a child’s previous receipt of public special education

services; and produce absurd results.

Reading the permissive language of Section

1412(a)(10)(C)(ii) to eliminate pre-existing equitable authority

in other circumstances also would flout the presumption

against implied repeals. Petitioner attempts to overcome that

presumption by arguing that Section 1412(a)(10)(C)(ii) would

be rendered superfluous if the Act’s “appropriate” relief pro-

vision is read to continue to permit parents in respondent’s

shoes to seek reimbursement. That effort should be rejected.

Section 1412(a)(10)(C)(ii) is not superfluous because it ad-

dresses the most common situation in which reimbursement

is sought. Moreover, reading Section 1412(a)(10)(C)(ii) to

establish a non-exclusive reimbursement remedy is consistent

with the immediately preceding subsection (Section

1412(a)(10)(C)(i)), which establishes a general rule that reim-

bursement is not available when a public agency has made

available a free appropriate public education. In addition,

that reading is necessary to give effect to other provisions of

the Act—including the Act’s express guarantee of a free ap-

propriate public education for “all children with disabilities”

(20 U.S.C. 1412(a)(1)(A))—and to av id leaving parents in re-

spondent’s shoes without a remedy in the absence of evidence

that Congress clearly intended that result.

Taking the Act as a whole and applying settled canons of

construction leads to the conclusion that private school tuition

reimbursement may be awarded in the circumstances here.

However, to the extent that the Court concludes that IDEA

is ambiguous on the question presented, it should defer to the

Department’s interpretation of the Act. In 1999 and 2006, the

Secretary of Education (Secretary), following notice-and-com-

ment rule-making, issued comments accompanying final regu-

lations implementing IDEA providing that the authority to

award reimbursement under the Act’s “appropriate” relief

provision is “independent of” the authority to award reim-

bursement under Section 1412(a)(10)(C)(ii) and that reim-

bursement is therefore available in the circumstances here.

That interpretation is entitled to deference.

The Spending Clause (U.S. Const. Art. 1 § 8, Cl. 1) does not

compel a different conclusion. First, because petitioner did

not invoke the Spending Clause below, this Court should not

entertain its efforts to do so now. Second, consistent with this

Court’s recent decision in Winkelman, 127 S. Ct. at 2006, a

determination that parents are eligible for reimbursement

regardless of whether their child has previously received pub-

lie special education does not require special notice, because

such a determination does not expand States’ substantive

obligations to provide a free appropriate publi c education for

“all children with disabilities.” 20 U.S.C. 1412(a)(1)(A).

Third, and in any event, IDEA, this Court’s precedents, and

the Secretary's formal interpretation of the 1997 amendments

have provided the States with any requisite notice. See Jack-

son Vv. Birmingham Bad. of Educ., 544 U.S. 167, 182-184 (2005).

ARGUMENT

PRIVATE SCHOOL TUITION REIMBURSEMENT MAY BE

AWARDED TO THE PARENTS OF A CHILD WHO HAS NOT

PREVIOUSLY RECEIVED PUBLIC SPECIAL EDUCATION

SERVICES WHEN THE CHILD HAS BEEN DENIED A FREE

APPROPRIATE PUBLIC EDUCATION

Under IDEA, “all children with disabilities"—regardless

of whether they are enrolled in public or private school—

enjoy the right to a free appropriate public education.

20 U.S.C. 1412(a)(1)(A). The remedial question presented in

this case arises only after a finding has been made that a child

with a disability has been denied a free appropriate public

education. Petitioner contends that IDEA provides no au-

thority to award private school tuition reimbursement to such

a child if the child did not previously receive public special

education. That position is contradicted by the text of IDEA,

this Court’s precedent, and the formal interpretation of the

agency charged with implementing IDEA. Although a court

has discretion to withhold such an award based on equitable

considerations in any given case, Congress has nevertheless

authorized the award of private school tuition reimbursement

to the parents of a child who has been denied a free appropri-

ate public education, including a child who has not previously

received public special education services.”

* Although this brief addresses the question presented by petitioner, the

government's view is that the factual premise of that question is unsound,

because Gilbert has “previously received special education and related services

under the authority of a public agency” (20 U.S.C. 1412(a10)(C)(ii)). After

receiving testing and evaluation services provided by petitioner, Gilbert was

enrolled in a school that provides special education services and petitioner

agreed to reimburse respondent up to $18,000 for tuition costs to attend that

school during the 1997-1998 and 1998-1999 school years, provided that respon-

dent complied with certain conditions. See C.A. App. 5, 14. The Stipulation of

Settlement and Discontinuance ({ 22) governing that arrangement provides

that, “le|xcept with respect to the enforcement of any of the matters stated

herein, * * * [the] Stipulation shall not be admissible in, and is not related to,

any other proceedings, litigation or settlement negotiations, whether between

the parties or otherwise.” C.A. App. 10, 19. That provision, however, does not

alter the fact that Gilbert has received special education services under the

authority of petitioner and subject to conditions imposed by petitioner. Be-

cause the premise of the question presented is unsound, the Court may wish to

dismiss the writ as improvidently granted. In the alternative, the Court may

wish to affirm on the alternative ground that Gilbert did previously receive

special education services authorized by petitioner, or permit the courts to

consider that issue on remand.

A. IDEA Explicitly Guarantees A Free Appropriate Public

Education To “All Children With Disabilities”

IDEA was enacted “to ensure that a// children with disabil-

ities have available to them a free appropriate public educa-

tion that emphasizes special education and related services

designed to meet their unique needs and prepare them for

employment and independent living.” 20 U.S.C. 1400(d)(1)(A)

(emphasis added). To that end, IDEA specifies that a State

must make a free appropriate public education available to

“all children with disabilities residing in the State between

the ages of 3 and 21, inclusive.” 20 U.S.C. 1412(a)(1)(A). Con-

gress set out only two “||limitation|s]” on that obligation, one

relating to children “aged 3 through 5 and 18 through 21”

where the obligation would conflict with State law or practice,

20 U.S.C. 1412(a)(1)(B)(i), and the other relating to incarcer-

ated persons, 20 U.S.C. 1412(a)(1)(B)(ii). Neither of those

limitations is implicated in this case.

To carry out its mandate, IDEA directs States to identify

and evaluate “[al]ll children with disabilities residing in the

State, including * * * children with disabilities attending

private schools.” 20 U.S.C. 1412(a)(3)(A); see 20 U.S.C.

1412(a)(10)(A)Gi). IDEA also “requires school districts to

develop an IEP for each child with a disability,” Winkelman,

127 S. Ct. at 2000, who seeks a free appropriate public educa-

tion, including children who currently attend private schools

when their parents request an IEP. IDEA contains detailed

provisions governing the substantive criteria for an IEP, 20

U.S.C. 1414, as well as procedural safeguards, 20 U.S.C. 1415.

IDEA grants parents the right to challenge a school district’s

proposed [EP in an “impartial due process hearing” before

the state or local educational agency, 20 U.S.C. 1415(f)01), and

to file a civil action in the event of an adverse administrative

outcome, 20 U.S.C. 1415(i)(2)(A)."

B. As This Court Has Held, IDEA’s “Appropriate” Relief Pro-

vision Authorizes Tuition Reimbursement For Children

Denied A Free Appropriate Public Education

_ Since its enactment in 1975, IDEA has provided that in a

civil action such as this one brought under-the Act, a court .

“shall grant such relief as [it] determines is appropriate.” 20

U.S.C. 1415(i)(2)(C)(iii). Although IDEA has been compre-

hensively amended on several occasions by Congress over the

30-plus years since its enactment, that language has remained

essentially unchanged. This Court has twice unanimously

affirmed that the broad scope of that language authorizes a

court “to order school authorities to reimburse parents for

their expenditures on private special education for a child if

the court ultimately determines that such placement, rather

than a proposed IEP, is proper under the Act.” Burlington,

471 U.S. at 369; see Carter, 510 U.S. at 15-16.

In Burlington, the parent of a child with disabilities (Mi-

chael) unilaterally enrolled Michael in a private school after

determining that the Town of Burlington’s proposed place-

ment for fourth grade was inappropriate and in light of Mi-

* While all children with disabilities are protected by IDEA, children who

are voluntarily enrolled in private school—and who are not seeking a free

appropriate public education—have no “individualized right to receive some or

all of the special education and related services that the child would receive if

enrolled in a public school.” 34 C.F.R. 300.454(a). As to those children, a

State’s obligation to pay for special education services is based on a formula

tied to the amount of federal funds the school district receives under IDEA

and the number of private school students in the district. 20 U.S.C.

1412(a)(10)(A)(i)(1)-(I]D); 34 C.F.R. 300.453. But that limitation does not apply

to private school children who, like Gilbert, seek a free appropriate public

education from a public agency (7.¢., a proposed IEP that would permit them

to obtain public special education services), or who are placed in private school

by a public agency.

chael’s poor performance in public school under an IEP for

third grade. After an administrative officer and a court had

found that the proposed IEP for Michael was inappropriate,

the parent obtained reimbursement for Michael's private

school tuition. In a unanimous decision written by then-Jus-

tice Rehnquist, this Court held that IDEA’s “appropriate”

relief provision authorized a court to award such tuition reim-

bursement. Burlingtow, 471 U.S. at 370.

In reaching that result, the Court explained that absent

such a remedy, “the child's right to a free appropriate public

education * * * would be less than complete,” Burlington, 471

U.S. at 370, and that “Congress undoubtedly did not intend

this result,” ‘bid. Moreover, the Court emphatically rejected

the notion that IDEA posed a cruel choice to parents of chil-

dren with disabilities of “goling] along with the IEP to the

detriment of their child if it turns out to be inappropriate or

payling] for what they consider to be the appropriate place-

ment.” /bid.* At the same time, however, the Court stressed

that parents who unilaterally place their children in private

school during a pending challenge to a proposed IEP “do so

at their own financial risk.” /d. at 373-374.

Eight vears later, in Carter, supra, the Court unanimously

reaffirmed Burlington and held that “a court may order reim-

bursement for parents who unilaterally withdraw their child

' The Court similarly rejected the Town's contention that the parent waived

any right to reimbursement by violating a stay-put provision calling for the

child to “remain in the then current educational placement” while administra-

tive proceedings were pending. Burlington, 471 U.S. at 371 (citing 20 USC.

1415te%3)). The Court explained that applying the stay-put provision under

these circumstances would compel parents to “leave the child in what may turn

out to be an inappropriate educational placement or to obtain the appropriate

placement only by sacrificing any claim for reimbursement.” /d. at 372. That

is unacceptable because “| t}he Act was intended to give handicapped children

both an appropriate education and a free one.” and the Court refused to read

the statute “to defeat one or the other of those objectives.” /bid. temphasis

added).

from: a public school that provides an inappropriate education

under IDEA.” Carter, 510 U.S. at 9. There, the parents of a

disabled child (Shannon) removed Shannon from a public

school and enrolled her in private school for the tenth grade

because they were dissatisfied with the school district’s IEP,

which had been implemented when Shannon was in ninth

grade.for. the last month of the school year. See Carter v.

Florence County Sch. Dist., 950 F.2d 156, 159 (4th Cir. 1991).

The Court authorized tuition reimbursement even though the

private school where Shannon was enrolled did not meet state

education standards, explaining that construing IDEA “to bar

reimbursement in the circumstances of this case would defeat

th{e] statutory purpose” to “ensure that children with disabili-

ties receive an education that is both appropriate and free.”

Carter, 510 U.S. at 13-14.

The Court dismissed the school district’s concerns about

the financial burden of allowing reimbursement in these cir-

cumstances. Carter, 510 U.S. at 15-16. The Court pointed out

that the financial burden could be avoided entirely by

“giv(ing] the child a free appropriate public education in a

public setting, or plac[ing] the child in an appropriate private

setting of the State’s choice.” /d. at 15. “This is IDEA’s man-

date,” the Court explained, “and school officials who conform

to it need not worry about reimbursement claims.” /bid. The

Court further observed that parents such as Shannon’s who

unilaterally change their child’s placement “do so at their

own financial risk” because they may obtain reimbursement

“only if a federal court concludes both that the public place-

ment violated IDEA and that the private school placement

was proper under the Act.” /bid.

Burlington and Carter underscore that IDEA’s broad re-

medial provision (Section 1415(i)(2)(C)(iii))—and its reim-

bursement component—are integral to ensuring that eligible

children receive a public education that is both free and ap-

propriate. Although Burlington and Carter both involved

children with disabilities who had received some public special

education services before their parents became dissatisifed

and opted for private school (in Carter, the services were for

only one month), neither decision suggests that a child’s re-

ceipt of such services is relevant to the reimbursement deter-

mination, much less constitutes a threshold condition for re-

imbursement. Accordingly, in the wake of Burlington, lower

courts routinely awarded reimbursement to parents of chil-

dren who had not previously received public special education

services as long as they established that their child was de-

nied a free appropriate public education and that the private

placement was appropriate. ’

C. Section 1412(a)(10)(C (ii) Does Not Deprive A Court Of Its

Authority To Grant Tuition Reimbursement In Circum-

stances Not Described In That Provision

In 1997, following two vears of hearings, Congress amend-

ed IDEA. Although Congress—which is presumed to be

aware of this Court's decisions—left the Act’s “appropriate”

relief provision unchanged, it added a new provision (Section

1412(a)(10)(C)) addressing the payment for education of chil-

dren with disabilities enrolled in private schools. According

to petitioner (Br. 21), the “clear meaning of the plain language

of |Section| 1412(a)(10)(C (ii) is that where a child has not

previously received special education from a public agency,

there is no authority to reimburse the tuition expenses arising

from the parents unilateral placement of the child in private

' See. ¢.g.. Gadsby v. Grasmick, 109 F.3d 940 (ith Cir. 1997); Seattle Seh.

Dist. No Iv. BS.. 82 F.3d 1498 (9th Cir. 16); Mary Pv. ilinois State Bd.

of Edue., 19 F. Supp. 1173. 0N.D. TL. 1946); Jean Pv. Westport Bd. of Edue..

865 F. Supp. 74D. Conn, 1994), aff'd. 101 F.5d 686 (2d Cir, 19) (Table);

Edwards-White v. District of Colranhia, 78 F. Supp. 1022 (D.D-C. 1992);

Shirk vy. District of Columbia, 756 F. Sapp. 31 (DDC. 1991 Lapides v. Coto,

550 Edue. Handicapped L. Rep. 387 (Jan. 4, 19).

school.” Neither Section 1412(a)(10)(C)(ii) nor the Act as a

whole supports that argument.

Petitioner’s interpretation is contradicted by the text of

Section 1412(a)(10)(C)(ii) and its surrounding provisions. Far

from speaking in restrictive terms, Section 1412(a)(10)(C)(ii)

is phrased in permissive terms. It provides that if “parents

of a child with a disability, who previously received special —

education and related services under the authority of a public

agency, enroll the child” in private school without the consent

or referral by the public agency, “a court or hearing officer

may require the agency to reimburse the parents for the cost

of that enrollment if * * * the agency had not made a free

appropriate public education available to the child in a timely

manner.” (emphasis added). The provision does not say that

a court may only grant such relief in those circumstances

and it does not say that a court may not grant such relief in

other circumstances. Petitioner’s interpretation therefore

requires the Court to insert limiting language into Section

1412(a)(10)(C)(ii) that Congress did not. Cf. Hanover Bank

v. Commissioner, 369 U.S. 672, 687 (1962) (“[W]e are not at

liberty, * * * to add to or alter the words employed to effect

a purpose which does not appear on the face of the statute.”).°

Furthermore, the critical phrase on which petitioner

relies—“who previously received special education and re-

lated services under the authority of a public agency,”—is a

dependent clause that operates in a descriptive rather than

* Because Section 1412(a)(10)(C)ii) does not expressly (or impliedly) limit

the authority to grant reimbursement in circumstances other than those

described in the section, the “specific governs over the general” canon of

construction does not help petitioner. As this Court has explained, that canon

operates “as a warning against applying a general provision when doing so

would undermine limitations created by a more specific provision.” Varity

Corp. v. Howe, 516 U.S. 489, 511 (1996). Here, as in Varity, giving effect to

IDEA’s “appropriate” relief provision to a parent in respondent’s shoes would

not undermine any “limitation” described in Section 1412(a(10)(C\ii).

conditional manner. That usage accords with the most plausi-

ble explanation for the phrase: Congress was simply codify-

ing the reimbursement remedy in the most common situation

in which that remedy had been sought (including in Burling-

fon and Carter). But the fact that Congress used such de-

seriptive language, especially when coupled with the permis-

sive “may require” language just discussed, refutes peti-

tioner’s argument that Congress intended the phrase to divest

the pre-existing authority under Section 1415(i)(2)(C)(iii) to

grant reimbursement when a child did not previously receive

such services.

Especially in light of Burlington and the broad statu-

tory authorizations for equitable relief to ensure a free and

appropriate education, what petitioner’s argument needs is

not limited language of authorization, such as that in Section

1412(ax(10)(C (ii), but language that expressly negates the

availability of tuition reimbursement in the circumstances of

this case. The absence of any relevant limiting language is

underscored by the fact that the statute expressly precludes

tuition reimbursement in circumstances of present here.

The immediately preceding subsection of the statute—

titled “In general”—reaffirms (as noted in Burlington and

Carter) that a public agency may not be required to reimburse

the cost of private school tuition “of a child with a disability

~at a private school * * * if that agency made a free appropri-

ate public education available to the child and the parents

elected to place the child in such private school.” 20 U.S.C.

1412(a)(10)C i). That subsection, unlike the one on which

petitioner relies, is both expressiy limiting and expressly con-

ditional. It underscores that parents who opt for private

school bear the risk if an adjudicator determines that the pro-

posed IEP was adequate. Nothing in that subsection re-

motely suggests that public agencies may also avoid such re-

imbursement when they have denied a child with a disability

a free appropriate public education, as long as the child has

not previously received public special education.

It is also noteworthy that despite numerous hearings and

debates on the 1997 amendments, there is no concrete evi-

dence in the legislative record that Congress intended to cut

back on the Act’s “appropriate” relief provision or that Con-

gress disagreed with the rationale of Burlington or Carter.

Cf. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 63

(2004). Indeed, “{nJo one at the time—no Member of Con-

gress, no Department of Education official, no school district

or State—expressed th[at] view.” Zuni Pub. Sch. Dist. No. 89

v. Department of Educ., 127 8. Ct. 1534, 1541 (2007). The fact

that there is no evidence that Congress sought to eliminate

the authority to grant private tuition reimbursement when a

child with a disability has been denied an appropriate place-

ment bolsters the conclusion that Congress was simply pro-

viding more concrete guidance in the most typical situation in

which reimbursement is sought and not, as petitioner con-

tends, scaling back the Act’s substantive protections.’

D. Petitioner’s Reading Works An Implied Repeal

After Burlington and Carter and before the 1997 amend-

ments to IDEA, it was clear that parents in respondent’s cir-

cumstances were entitled to reimbursement. The bur-

den of petitioner’s argument, therefore, is that Section

1412(a)(10)(C)(ii)’s reference to “parents of a child * * *

7 Section 1412(a)(10)(C (iii) does authorize a court to “reduc|e| or den{y]’” the

“cost of reimbursement described in clause (ii).” But even that provision is

phrased in permissive rather than mandatory terms. In addition, while Section

1412(a)(10)(C)(iii) by virtue of its cross-reference to subsection (ii) does not

apply to the situation where a parent is seeking reimbursement with respect

to a child who has not previously received public special education services, a

court would retain the authority to reduce or deny such an award for any

determining what relief was “appropriate.” See Varity, 516 U.S. at 515.

who previously received” public special education services

effectively repealed that pre-existing right to seek tuition

reimbursement. This Court has repeatedly held that “‘re-

peals by implication are not favored’ and will not be presumed

unless the legislature's intention ‘to repeal [is] clear and mani-

fest.’” National Ass'v of Home Builders v. Defenders of Wild-

life, 1278. Ct. 2518, 2522 (2007) (quoting Watt v. Alaska, 451

U.S. 259, 267 (1981)). As this Court has emphasized, “[a]n

implied repeal will only be found where provisions in two stat-

utes are in ‘irreconcilable conflict,’ or where the latter Act

covers the whole subject of the earlier one and ‘is clearly in-

tended as a substitute.” Branch v. Smith, 5388 U.S. 254, 273

(2003) (quoting Posadas v. National City Bank, 296 U.S. 497,

503 (1936)). Neither of those conditions is satisfied here.

Giving effect to this Court’s interpretation of IDEA’s “ap-

propriate” relief provision (Section 1415(i)(2)(C (iii) creates

no “irreconcilable conflict” with Section 1412(a)(10)(C (ii). As

discussed, Section 1412(a)(10)(C)(ii) is phrased in permissive

terms and addresses the most common situation in which re-

imbursement claims have arisen. Recognizing that courts

retain their authority under Section 1415(i)(2)(C (iii) to grant

reimbursement to parents in respondent's shoes does not in

any way conflict with Section 1412(a)(10)(C (ii). Likewise,

Section 1412(a)(10)(C (ii) does not “cover | the whole subject”

addressed by the “appropriate” relief provision: by its terms,

it addresses only a particular fact pattern. In addition, as

discussed in the preceding section, there is no basis for con-

cluding that Section 1412(a)(10)(C)(ii) was intended, much less

“clearly intended,” to operate as a “substitute” for the Act's

“appropriate” relief provision in situations where a child has

not previously received public special education services.

Petitioner's argument is essentially that if Section

1412(a)(10)(C ii) is not read to work an implied repeal, it will

be rendered superfluous. But express grants of authority

that may not be statutorily necessary are commonplace and

such belt-and-suspenders provisions are not remotely suffi-

cient to work an implied repeal. Moreover, petitioner over-

states its argument in contending that anything but its im-

plied repeal theory would render Section 1412(a)(10)(C)(ii)

a “nullity.” (Br. 21). As this Court has explained, “[(s]tatu-

tory provisions may simply. codify existing rights or powers.”

Mallard v. United States Dist. Ct., 490 U.S. 296, 307 (1989).

Here, Section 1412(a)(10)(C)(ii) codifies the right to pursue

reimbursement for the most common situation, presented in

both Burlington and Carter, in which a reimbursement right

arises. Moreover, Congress not only codified that right, but

also established criteria that a court “may” consider in decid-

ing whether to reduce or deny reimbursement. 20 U.S.C.

1412(a)(10)(C)(iii). + %In short, Section 1412(a)(10)(C)(ii)

does not “sub silentio or by implication bar parents from

seeking to vindicate” (Winkelman, 127 S. Ct. at 2002) the

right to reimbursement embodied in Section 1415(i)(2)(C)(iii).*

E. Petitioner’s Reading Conflicts With Key Provisions Of

IDEA And Its Structure

Petitioner’s interpretation of Section 1412(a)(10)(C)(ii)

also cannot be squared with other provisions of IDEA. “[A]

proper interpretation of [IDEA] requires a consideration of

the entire statutory scheme.” Winkelman, 127 S. Ct. at 2000.

Viewed as a whole, IDEA provides for reimbursement of pri-

vate school tuition incurred by the parent of a disabled child

who has been denied a free appropriate public education

* To the extent that there is some redundancy between the relief available

under Section 1412(a)(10)(C){ii) and that under Section 1415(iM2)C)iii), that

is not problematic or unusual. As this Court has explained, “[rledundancies

across statutes are not unusual events in drafting,” and courts should give

effect to all provisions absent a “positive repugnancy.” Connecticut Nat'l Bank

v. Germain, 503 U.S. 249, 253 (1992) (internal quotation marks omitted).

whether or not the child previously received public special

education services.

First, and most fundamentally, petitioner’s reading con-

flicts with IDEA’s central guarantee of providing a free ap-

propriate education to “all children with disabilities.” 20

U.S.C. 1412(a)(1)(A) (emphasis added). That guarantee is

subject to only two limitations, see 20 U.S.C. 1412(a)(1)(B),

neither of which is implicated here. As this Court recognized

in Burlington, denying tuition reimbursement to the parents

of a child who was unilaterally enrolled in private school be-

cause of the parents’ concerns over a proposed IEP that they

subsequently prove to be inadequate would render “the child’s

right to a free appropriate public education * * * less than

complete.” Burlington, 471 U.S. at 370; see id. at 372 (ex-

plaining that forcing parents to subject a child with a disabil-

ity to what they believe is an inappropriate placement or ob-

taining an appropriate placement only at the expense of “sac-

rificing any claim for reimbursement” would deny parents the

Act’s right to “both an appropriate education and a free one”).

This Court recently observed that it found “nothing in

[IDEA] to indicate that when Congress required States to

provide adequate instruction to a child ‘at no cost to parents,’

it intended that only some parents would be able to enforce

that mandate.” Winkelman, 127 S. Ct. at 2005 (quoting 20

U.S.C. 1401(29)). This Court refused to adopt a reading of the

statute that would “leave | some parents without a remedy,”

ibid., but petitioner’s reading of Section 1412(a)(10)(C)(ii)

would do just that by depriving one class of parents of a reim-

bursement remedy (viz., the parents of children who have not

previously received public special education services), even

though a court has found that their child was denied a free

appropriate public education. There is no reason to conclude

that Congress sought to relegate parents in respondent’s

shoes, or their children, to such a second-class status.”

Petitioner’s position works a hardship not only on parents

of children enrolled in private school (who enjoy the Act’s

protections), but also on parents of children enrolled in public

school. Under petitioner’s view, the parents of a child with a

disability who is enrolled in public school would forfeit the

opportunity to seek tuition reimbursement if they believe that

a proposed initial IEP is inadequate and unilaterally place

their child in private school to obtain the services that they

believe are appropriate pending a successful challenge to the

IEP. That is particularly true where, as was the case here,

the IEP at issue was proposed over the summer and the par-

ents must make a choice where to enroll their child for the

upcoming school year. Moreover, petitioner’s position im-

poses a potential hardship on all children who enter the spe-

cial education system—whether enrolled in public or private

school—because there is always some point at which a child

has not previously received public special education services."

* Of course, parents must still comply with other statutory requirements,

including those governing the IEP process, before they may seek relief. At no

stage of the process, however, is any talismanic significance placed on whether

the child previously received public special education services. Petitioner's

effort to insert that precondition at the remedy stage, once a violation has been

established, is both at odds with the statutory structure and sound policy, which

is why it has been rejected by Congress and the Secretary. See Part G, infra.

' A child may receive “special education” or “related services” covered by

the Act whether enrolled in public or private school. 20 U.S.C. 1401(26) and

(29). As aresult, petitioner’s position potentially penalizes all children entering

the special education system. IDEA’s infants and toddlers program does not

eliminate that problem. See 20 U.S.C. 1431 et seq. In many cases, children with

disabilities are not evaluated, identified, and offered special edueation and

related services until after they begin kindergarten. Moreover, even as to

infants and toddlers, petitioner’s position requires parents to forfeit reimburse-

Second, petitioner’s reading is at odds with IDEA’s child-

find requirement. The Act does not treat previously unserved

students as second-class citizens. To the contrary, the Act

obligates States to identify, locate, and evaluate “alll children

with disabilities residing in the State, including children with

disabilities * * * attending private schools.” 20 U.S.C.

1412(a)(3)(A); see 20 U.S.C. 1412(a)(10)(A)(ii). The purpose of

finding such previously unserved children is of course to en-

sure that the State makes available to them a free appropri-

ate public education. Petitioner’s interpretation would have

the States seek such students out, but then deny them, in

cases like this, a free appropriate public education by requir-

ing parents to subject their child to demonstrably inadequate

public special education services in order to be eligible for

tuition reimbursement. In Burlington, this Court observed

that subjecting parents to such a dilemma contravenes the

Act’s basie guarantees. 471 U.S. at 370.

Third, and more generally, petitioner’s reading conflicts

with the elaborate substantive and procedural requirements

of IDEA that are geared towards ensuring that all children

with disabilities actually receive a free appropriate public

education, and that parents who believe that a proposed IEP

is inappropriate have an opportunity to challenge that IEP

and, when successful, obtain “appropriate” relief. See Win-

kelman, 1278. Ct. at 2000-2002 (detailing parents rights); see

also Schaeffer v. Weast, 546 U.S. 49, 51-53 (2005). That is be-

cause, under petitioner's position, a court may find that a

child has been denied a free appropriate public education, but

nonetheless lack the authority to grant the relief necessary to

provide a free and appropriate education.

ment for tuition-related services if they do not subject their child to public

special education, even if a proposed plan is entirely inadequate. Cf. WM. vy.

School Bd., 437 F.3d 1085 (11th Cir. 2006).

F. Petitioner’s Reading Contravenes The Express Purpose Of

IDEA And Produces Absurd Results

Adopting petitioner’s reading of Section 1412(a)(10)(C)(ii)

also would frustrate the express purpose of IDEA—.e., “to

ensure that all children with disabilities have available to

them a free appropriate public education.” 20 U.S.C.

~~ 1400(d)(1)(A). This Court has twice held that the remedy of .

reimbursement of private school tuition is essential to enfore-

ing IDEA’s requirement that all children with disabilities be

provided an education that is both free and appropriate, and

has instructed that IDEA “should not be interpreted to defeat

[that] objective[].” Burlington, 471 U.S. at 372; see Carter,

510 U.S. at 14-15. Yet under petitioner’s approach, the par-

ents of a child who has not previously received public special

education services are not entitled to tuition reimbursement,

even when a proposed placement is inappropriate.

Indeed, when considered in light of IDEA’s broader objec-

tives, petitioner’s reading of Section 1412(a)(10)(C)(ii) pro-

duces absurd results and should be rejected for that reason as

well. See, ¢.g., Green v. Bock Laundry Mach. Co., 490 U.S.

504, 509-511 (1989); id. at 527 (Sealia, J., concurring in the

judgment); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,

571 (1982); see also Winkelman, 127 S. Ct. at 2004 (interpret-

ing IDEA to avoid “incongruous results”). Under petitioner’s

reading, parents of a child with a disability who believe—

correctly—that a proposed IEP is inadequate must subject

their child to the inappropriate program to qualify for reim-

bursement. One district court has suggested that the problem

of having to place a disabled child in an inappropriate pro-

gram could be alleviated by placing the child in that program

for “as short a period as one day.” Baltimore City Bd. of

Comm'rs v. Taylorch, 395 F. Supp. 2d 246, 250 (D. Md. 2005).

But that holding only highlights the potential absurdities that

flow from petitioner’s position.'!

Appropriate education during a child’s formative vears is

absolutely critical to a child’s development. Moving a child

from one school to another itself can prove highly disruptive

to a child on an educational as well as psychological level.

That is true for any youth; it may be especially true for a child

with a learning disability. It would be absurd to conclude that

Congress created a regime whereby any parents, including

those in respondent's shoes, would have to subject their child

to a program that they believe would be to their child's detri-

ment in order to qualify for tuition reimbursement if they

prove that to be true. “The potential for injustice in this re-

sult is apparent.” Winkelman, 1278S. Ct. at 2005.

Petitioner contends that this analysis is at odds with the

rule that “an IEP may not be presumed to be invalid until the

parent demonstrates otherwise.” Br. 23 (citing Schaffer, su-

pra). That is incorrect. As this Court has stressed, parents

who unilaterally enroll their children in private schools pend-

ing a challenge to a proposed IEP “do so at their own finan-

cial risk.” Burlington, 471 U.S. at 374; see Carter, 510 U.S. at

15. The remedial question presented by this case only arises

once a parent has successfully carried his burden of proving

that the proposed IEP was in fact inadequate.

Petitioner contends (Br. 34) that his reading is necessary

to “control” costs. Congress, however, has made clear its

policy of making a free appropriate education available to “all

children with disabilities.” 20 U.S.C. 1412(a)(1)(A). As this

Court admonished in Carter in rejecting essentially the same

’ Petitioner's reading also leads to the absurd result that reimbursement

may be denied to parents of children with disabilities seeking publie special

education services when a State wrongly refuses to identify their child as dis-

abled. See, ¢.g., Mary P.,. 19 F. Supp. at 1175, 1181 (ordering school district

to reimburse parents of child with disability for cost of private speech therapy

where school district “steadfastly denied | child’s| eligibility for such services”).

argument, “public educational authorities who want to avoid

reimbursing parents for the private education of a disabled

child can do one of two things: give the child a free appropri-

ate public education in a public setting, or place the child in an

appropriate private setting of the State’s choice.” 510 U.S. at

15. And while Congress has indeed sought to control costs

associated with IDEA and related litigation, see Schaffer, 546

U.S. at 58-59, there is no evidence that Congress sought to.

deny a complete remedy to parents who prevail in an action

alleging the denial of a free appropriate public education.”

Petitioner contends (Br. 36) that his reading supports Con-

gress’s goal “to educate handicapped children with nonhandi-

capped children whenever possible.” But this “mainstream-

ing” objective—embodied in the Act’s “least restrictive envi-

ronment” provision—by its terms applies to “children in pub-

lic or private institutions.” (20 U.S.C. 1412(a)(5)(A) (emphasis

added)). In other words, the Act’s mainstreaming goal places

a preference on educating children with disabilities in “regu-

lar classes,” ibid., and not on whether those classes take place

in a public or private school. Moreover, that preference is not

absolute and even petitioner’s proposed placement did not call

for Gilbert to be “mainstreamed.” J.A. 34a.

_™ Petitioner’s amici point to the costs of educating children with disabilities

in private schools and the number of private placements. Only a tiny fraction

(about 1.5%) of children with disabilities are educated in private school at public

expense, that number has remained largely consistent since Burlington was

decided, and the cost of educating those children in private schools constitutes

an even tinier fraction (about 0.24%) of the overall costs of public education.

See J. Greene and M. Winters, Debunking a Special Education Myth, Educ.

Next, Spring 2007, at 68-70. Moreover, the “overwhelming majority” of these

private placements were made by public agencies themselves. Br. for Nat'l

School Boards Ass’n et al. 20. In any event, as discussed, there is no evidence

that Congress sought to empower public agencies to “control” costs under

IDEA by denying any child a free appropriate public education, including by

proposing manifestly inadequate IEPs and thus discouraging parents from

availing themselves of their right to a free and appropriate education.

Finally, petitioner suggests that parents will seek to ma-

nipulate the IEP process. Br. 9, 13. But as discussed, parents

who unilaterally place their children in private school “do so

at their own financial risk.” Carter, 510 U.S. at 15 (quoting

Burlington, 471 U.S. at 347). Moreover, even after a violation

of IDEA is established, courts have broad “equitable” discre-

tion in determining what relief is “appropriate,” including

“the appropriate and reasonable level of reimbursement that

should be required” as well as the actions of parents. /d. at

15-16; see Burlington, 471 U.S. at 374; id. at 366-367. The

hearing officer in this case found that respondent “did every-

thing asked of him *_*—* in regard to this matter.” J.A.

35a."

G. The Formal Position Of The Agency Charged With Imple-

menting IDEA Is Entitled To Deference

For the reasons discussed above, IDEA authorizes tuition

reimbursement to a parent in respondent's shoes. To the

extent that the Court has any doubt as to that conclusion,

however, it should defer to the Department's considered in-

terpretation of the Act. See Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837 (1984); Defenders of Wildlife, 1278S. Ct. at 2531-

2533.

In commentary published in the Federal Register that ae-

companied the Department's final regulations implementing

the 1997 Amendments to the Act, the Secretary directly ad-

dressed the question presented and stated:

| H jearing officers and courts retain their authority recog-

nized in Burlington and * * * Carter * * * to award

‘* There is an additional practical check on abusive litigation in this context.

As Justice Scalia recently explained, “[a jetions seeking reimbursement are less

likely to be frivolous, since not many parents will be willing to lay out the

money for private education without some solid reason to believe that the

FAPE, was inadequate.” Winkelman, 127 S. Ct. at 2011 (coneurring in the

Judgment in part and dissenting in part).

“appropriate” relief if a public agency has failed to pro-

vide a [free appropriate public education], including reim-

bursement and compensatory services under section

615(/)(2)(B)iii) [20 U.S.C. 1415(i)(2)(B){iii)} in instances

in which the child has not yet received special education

and related services. This authority is independent of

their-authority under section 612(a)(10)(C)(ii) [20 U.S.C.

1412(a)(10)(C)(ii)] to award reimbursement for private

placements of children who previously were receiving spe-

cia] education and related services from a public agency.

64 Fed. Reg. at 12,602.

Likewise, in formal comments that followed notice-and-

comment rule-making and that were published in the Federal

ing the 2004 amendments to the Act, the Secretary stated:

[W]e do not believe it is appropriate to include in these

regulations a provision relieving a public agency of its obli-

gation to provide tuition reimbursement for a unilateral

placement in a private school if the child did not first re-

ceive special education and related services from the [local

educational agency].

This authority is independent of the court’s or hearing offi-

cer’s authority under section 612(a)(10)(C)(ii) [20 U.S.C.

1412(a)(10)(C)(ii)] of the Act to award reimbursement for

private placements of children who previously were receiv-

ing special education and related services from a public

agency.

71 Fed. Reg. at 46,599.

That interpretation is entitled to deference. This Court

has long recognized that official agency interpretations of

a statute formally adopted pursuant to notice-and-com-

ment rule-making, formal adjudication, or some other “rela-

tively formal administrative procedure tending to foster

* * * fairness and deliberation” are entitled to Chevron def-

erence. United States v. Mead Corp., 533 U.S. 218, 230 (2001);

see Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339,

2349 (2007) (extending deference to agency interpretation of

its regulations contained in an “Advisory Memorandum” be-

cause the interpretation “reflects {the agency's] considered

views”); Whitman v. American Trucking Ass‘ns, 531 US.

457, 477-482 (2001) (applying Chevron to agency statements

in explanatory preamble to final regulations).

In this case, the Secretary's commentary was the product

of this formal process and was issued in connection with her

authority to “issue regulations * * *that * * * are neces-

sary to ensure that there is compliance with the specific re-

quirements of this chapter.” 20 U.S.C. 1406(a). As such, the

Secretary's interpretation is entitled to Cherron deference so

long as it is reasonable. For the reasons discussed above, the

agency's interpretation is, at a minimum, reasonable.

H. Pennhurst Does Not Assist Petitioner

Petitioner contends for the first time before this Court (Br.

38-41) that it cannot be ordered to reimburse respondent be-

cause IDEA was enacted pursuant to Congress's spending

authority, which requires Congress set out conditions to a

State’s acceptance of federal funds “unambiguously.” Penw-

hurst Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Be-

cause petitioner failed to invoke spending authority principles

below, the Court should decline to consider that argument in

the first instanee. United States v. United Foods, Inc., 533

U.S. 405, 417 (2001) (citation omitted).

In any event, petitioner's new-found interest in the Spend-

ing Clause (U.S. Const. Art. 1., § 8, Cl. 1) is of no avail. This

past Term, in Winkelman, the Court rejected the argument

that Pennhurst principles required Congress to provide clear

notice that IDEA conferred on parents independent rights.

127 S. Ct. at 2006. The Court explained that “[ojur determi-

nation that IDEA grants to parents independent, enforceable

rights does not impose any substantive condition or obligation

on States they would not otherwise be required by law to ob-

serve.” /bid. Similarly here, IDEA unambiguously imposes

on States the substantive obligation to provide a free appro-

priate public education to “all children with disabilities.” 20

U.S.C. 1412(a)(1)."* | a

Moreover, for the reasons discussed above, the text of

IDEA, this Court’s precedent, and formal interpretation of

the Department published in the Federal Register put States

on clear notice that reimbursement of private school tuition is

available when a school district denies a child with a disability

a free appropriate public education, regardless of whether the

child previously received public special education services.

See Jackson v. Birmingham Bd. of Educ., 544 U.S. 107, 182-

184 (2005) (rejecting Spending Clause challenge to cause of

action under Title IX where statute, case law, and federal

regulations all provided requisite notice). Likewise, States

have long been on notice that they can avoid such reimburse-

ment simply by providing a free appropriate public education.

What is sought here is not clear notice, but a windfall in the

form of an exception to a long-recognized right to reimburse-

ment under IDEA. Nothing in this Court’s spending author-

ity principles supports that result."°

‘ The appropriate measure of financial burden in this circumstance is the

primary one of providing a free appropriate public education. See Burlington,

471 U.S. at 370-371 (holding that reimbursement of private school tuition is not

“damages” but constitutes “expenses that [the State] should have paid all along

and would have borne in the first instance had it developed a proper IEP”);

Carter, 510 U.S. at 15 (explaining that school districts that “conform to|IDEA's

mandate] need not worry about reimbursement claims”).

Petitioner’s reliance on Pennhurst is unavailing for another reason.

Under this Court’s cases, “a recipient |of federa! funding] may be held liable to

third-party beneficiaries for intentional conduct that violates the clear terms

of the relevant statute.” Barnes v. Gorman, 536 U.S. 181, 187 (2002). When a

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

KENT D. TALBERT WAN J. KIM

General Counsel Assistant Attorney General

Department of Education GREGORY G. GARRE

Deputy Solicitor General

JONATHAN L. MARCUS

Assistant to the Solicitor

General

DIANA K. FLYNN

LIsaA J. STARK

Attorneys

JULY 2007

school district violates IDEA’s guarantee of a free appropriate public educa.

tion, it may thus be held liable to parents for reimbursement for “expenses that

it should have paid all along and would have borne in the first instance had it

developed a proper LEP” Bu risngton, A71 U.S. at 370-371.

APPENDIX

1. 20 U.S.C. 1400 (Supp. IV 2004), provides in pertinent part:

Short title; findings; purposes

* * * *& &

(d) Purposes

The purposes of this chapter are—

(1)(A) to ensure that all children with disabilities have

available to them a free appropriate public education that

emphasizes special education and related services design- .

ed to meet their unique needs and prepare them for fur-

ther education, employment, and independent living;

* *¢£ & * *

2. 200U.S.C. 1401 (Supp. IV 2004), provides in pertinent part:

Definitions

Except as otherwise provided, in this chapter:

x* + * * *

(9) Free appropriate public education

The term “free appropriate public education” means

special education and related services that—

(A) have been provided at public expense, under public

supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

or secondary school education in the State involved; and

(la)

(D) are provided in conformity with the individualized

education program required under section 1414(d) of this

title.

(26) Related services

(A) In general

The term “related services” means transportation, and

such developmental, corrective, and other supportive ser-

vices (including speech-language pathology and audiology

services, interpreting services, psychological services,

physical and occupational therapy, recreation, including

therapeutic recreation, social work services, school nurse

services designed to enable a child with a disability to re-

ceive a free appropriate public education as described in

the individualized education program of the child, counsel-

ing services, including rehabilitation counseling, orienta-

tion and mobility services, and medical services, except

that such medical services shall be for diagnostic and eval-

uation purposes only) as may be required to assist a child

with a disability to benefit from special education, and

includes the early identification and assessment of dis-

abling conditions in children.

(29) Special education

The term “special education” means specially designed

instruction, at no cost to parents, to meet the unique needs of

a child with a disability, including—

(A) instruction conducted in the classroom, in the home,

in hospitals and institutions, and in other settings; and

(B) instruction in physical education.

x *+ &* & &

3. 20 U.S.C. 1412 (Supp. IV 2004), provides in pertinent part:

- State eligibility

(a) In general

A State is eligible for assistance under this subchapter for

a fiscal year if the State submits a plan that provides assur-

ances to the Secretary that the State has in effect policies and

procedures to ensure that the State meets each of the follow-

ing conditions:

(1) Free appropriate public education

(A) In general

A free appropriate public education is available to

all children with disabilities residing in the State be-

tween the ages of 3 and 21, inclusive, including children

with disabilities who have been suspended or expelled

from school.

(B) Limitation

The obligation to make a free appropriate public

education available to all children with disabilities does

not apply with respect to children—

(i) aged 3 through 5 and 18 through 21 in a State

to the extent that its application to those children would

be inconsistent with State law or practice, or the order

of any court, respecting the provision of public educa-

tion to children in those age ranges; and

(ii) aged 18 through 21 to the extent that State law

does not require that special education and related ser-

vices under this subchapter be provided to children with

disabilities who, in the educational placement prior to

their incarceration in an adult correctional facility—

(I) were not actually identified as being a

child with a disability under section 1401 of this

title; or

(11) did not have an individualized education

program under this subchapter.

(3) Child find

(A) In general

All children with disabilities residing in the State,

including children with disabilities who are homeless

children or are wards of the State and children with dis-

abilities attending private schools, regardless of the

severity of their disabilities, and who are in need of spe-

cial education and related services, are identified, lo-

cated, and evaluated and a practical method is devel-

oped and implemented to determine which children with

disabilities are currently receiving needed special edu-

cation and related services.

(10) Children in private schools

(C)

(A) Children enrolled in private schools by their par-

ents

= x i

(ii) Child find requirement

(I) In general

The requirements of paragraph (3) (relating to

child find) shall apply with respect to children with

disabilities in the State who are enrolled in private,

including religious, elementary schools and second-

ary schools.

* * + &

Payment for education of children enrolled in pri-

vate schools without consent of or referral by the —

public agency

(i) In general

Subject to subparagraph (A), this subchapter does

not require a local educational agency to pay for the cost

of education, including special education and related

services, of a child with a disability at a private school or

facility if that agency made a free appropriate public

education available to the child and the parents elected

to place the child in such private school or facility.

(ii) Reimbursement for private school placement

If the parents of a child with a disability, who pre-

viously received special education and related services

under the authority of a public agency, enroll the child

in a private elementary school or secondary school with-

out the consent of or referral by the public agency, a

court or a hearing officer may require the agency to

reimburse the parents for the cost of that enrollment if

the court or hearing officer finds that the agency had

not made a free appropriate public education available

to the child in a timely manner prior to that enrollment.

(iii) Limitation on reimbursement

The cost of reimbursement described in clause (ii)

may be reduced or denied—-

(1) if—

(aa) atthe most recent IEP meeting that the

parents attended prior to removal of the child from

the public school, the parents did not inform the

IEP Team that they were rejecting the placement

proposed by the public agency to provide a free ap-

propriate public education to their child, including

stating their concerns and their intent to enroll their

child in a private school at publie expense; or

(bb) 10 business days (including any holidays

that occur on a business day) prior to the removal of

the child from the public school, the parents did not

give written notice to the public agency of the infor-

mation described in item (aa):

(II) if, prior to the parents’ removal of the child

from the publie school, the public agency informed the

parents, through the notice requirements described in

section 1415(b)(3) of this title, of its intent to evaluate

the child (including a statement of the purpose of the

evaluation that was appropriate and reasonable), but the

parents did not make the child available for such evalua-

tion; or

(III) upon a judicial finding of unreasonableness

with respect to actions taken by the parents.

(iv) Exception

Notwithstanding the notice requirement in clause (iii)(1),

the cost of reimbursement—

(1) shall not be reduced or denied for failure to provide

such notice if—

(aa) the school prevented the parent from providing

such notice;

(bb) the parents had not received notice, pursuant

to section 1415 of this title, of the notice requirement in

clause (iii)(1); or

(ee) compliance with clause (iii)(1) would likely re-

sult in physical harm to the child; and

(11) may, in the discretion of a court or a hearing officer,

not be reduced or denied for failure to provide such notice

if—

(aa) the parent is illiterate or cannot write in Eng-

lish; or

(bb) compliance with clause (iii)(1) would likely re-

sult in serious emotional harm to the child.

* * *£ KF &

4. 20 U.S.C. 1415 (Supp. [V 2004), provides in pertinent

part):

Procedural safeguards

x* *+ *& K

(i) Administrative procedures

(2) Right to bring civil action

x * * * *

In any action brought under this paragraph, the

court—

(i) shall receive the records of the adminis-

trative proceedings;

(ii) shall hear additional evidence at the re-

quest of a party; and

(iii) basing its decision on the preponderance

of the evidence, shall grant such relief as the court

determines is appropriate.

* *+ * *F

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.