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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0505%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 552 U.S. 1

## Text

FLED

_Novoees7 | JUL 18-2007

BOARD OF EDUCATION OF THE CITY
SCHOOL DISTRICT OF THE CITY OF NEW YORK,

Peitlwrer

Vv.

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

S

On Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit

¢

BRIEF FOR THE NATIONAL DISABILITY RIGHTS
FOR THE PUBLIC INTEREST AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS

7

BETH S. BRINKMANN
SETH M. GALANTER

Counsel of Record
LINDA A. ARNSBARGER
MORRISON & FOERSTER LLP
2000 Pennsylvania Ave., NW
Washington, DC 20006
(202) 887-1500

CARL H. LOEWENSON JR.
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, NY 10104

Counsel for Amici Curiae

JULY 18, 2006

i ———————————————
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS
Page
TAR OP AU TIIGRTTIRG ......00.00000000cceceese0se0re0e00e000s iii
INTEREST OF AMICI CURIAE .........00.c0cccese0eeeeeeeee 1
SUMMARY OF ARGUMENT............c:ccecceceeceseeveeeeeees 2
iia iiaaierlarieeennsbiiaienenemee 5

SECTION 1412(a10(C) OF THE -IDEA -DOES
NOT RESTRICT JUDICIAL AUTHORITY TO
AWARD REIMBURSEMENT FOR NEEDED
PRIVATE SCHOOL PLACEMENT WHEN A
CHILD DID NOT PREVIOUSLY RECEIVE
SPECIAL EDUCATION UNDER THE AUTHORITY
I FIGS crccccvevceverevsocevscevesevsevnseocssoees 5

A. It Is Rare For Parents To Unilaterally Place A
Child With Disabilities In A Private School
Based On A Public School's Failure To Offer
The Appropriate Education Required By

1. The incidence of due process complaints

seeking mbursement for private
shnunentisentepelpemell Lesnmrmessnesennes 7

2. Private placement costs generally are not
significantly greater than public special
education costs for comparable services
and there is no evidence that wealthy
parents are gaming the system ................. 11

3. Private placement costs fall only on school
districts who do not provide the
appropriate education required by federal
Oe 15

1.

il

TABLE OF CONTENTS - Continued

Page

B. Congress Did Not Clearly Manifest An Intent
To Prohibit Courts From Ordering
Reimbursement When A _ School District
OE

Congress has noi altered the statutory
provisions that this Court correctly
interpreted in Burlington and Carter to
authorize courts to order reimbursement
when federal law has been violated...........

Section 1412(a)(10)(C) does not contain a
clear statement restricting the courts’

previously am — authority

Petitioner's reading of Section 1412(a)(10)(C)
would lead to absurd results and is not

supported by legislative history.................

er crcesinevervevmensvernvsnvienneavenmnanuvemmenn

19

20

23

TABLE OF AUTHORITIES
Page
CASES:
Board of Education v. Rowley, 458 U.S. 176 (1982)........... 6
Califano v. Yamasaki, 442 U.S. 682 (1979) ............cccccceeee 23
Connors v. Mills, 34 F. Supp. 2d 795 (N.D.NLY.
ee eee pusnsenssnnssuansseussesssenenth 12
Florence County School District v. Carter, 510 U.S.
ee Pasecensecasessezsesssnensesnsessavensespenssesensemeenennnenncetelll passim
Frank G. v. Board of Education of the Hyde Park
Central School District, 459 F.3d 356 (2d Cir. 2006),
petition for cert. pending, No. 06-580 ..........00.ccccecceeeseeees 18
Jose P. v. Ambach, Civ. No. 79-270 (E.D.N.Y. Dec.
SiO tscersesnsssnssesnnennemenemeneneetts 16
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S.
EE 4, 23, 24
Porter v. Warner Holding Co., 328 U.S. 395 (1946) ...4, 23, 24
Schaffer v. Weast, 546 U.S. 49 (2005) ..........:ccccccseereseeeeees 15
School Committee of the Town of Burlington v.
Department of Education, 471 U.S. 359 (1985) .....passim
Scripps-Howard Radio, Inc. v. FCC, 316 US. 4
eS 24
Smith v. Robinson, 468 U.S. 992 (1984).........cccccccceeeeeeeveees 5
Swann v. Charlotte-Mecklenburg Board of Education,
EE - 23

United States v. Kirby, 74 U.S. 482 (1868) ........ce:.ssee-sseee 25

iv
TABLE OF AUTHORITIES - Continued

United States v. Oakland Cannabis Buyers’
Cooperative, 532 U.S. 483 (2001) ..........:cccsseeeereeeeees 4, 23

X v. New York State Education Department, 975
I 18

NEW YORK ADMINISTRATIVE SPECIAL EDUCATION DECISIONS:
Application of a Child with a Disability, Appeal No.

TT 18
Application of a Child with a Disability, Appeal No.

ED hbcrcnnencssscersnereememenseremennenil 17
Application of a Child with a Disability, Appeal No.

ET 17
Application of a Child with a Disability, Appeal No.

EE 17
STATUTES:

Individuals with Disabilities Education Act (IDEA),
20 U.S.C. § 1400 et seq.:

ee itensnrenennsrenssressvensmncsensmennnnnneiiill 20, 21
EE 8, 21
Tr passim
nee 26
SRT cc cccecvcccceccescccccceccessccesvecsceetill 26
BEE crvsnsnsemeensmmemmenmnnmenenmnnnenil 6
Ee 15
ES 21

a

TABLE OF AUTHORITIES — Continued

Page
a UE 2, 6, 21, 22, 25
a EEE 29
I 29
EE 29
EEE 29
LEGISLATIVE HISTORY:
H.R. Rep. No. 104-614 (1996) ..............0ssseccsrssersssesersesees 28
| 29

Hearing on Farly Childhood, Youth & Families
Staff Dra). of the IDEA Improvement Act: Before
the Subcomm. on Early Childhood, Youth &
Families of the House Comm. on Economic and
Educational Opportunities, 104th Cong. (1996)........... 27

Hearing on the Reauthorization of the Individuals
with Disabilities Education Act: Before the
Subcomm. on Select Educ. & Civil Rights of the
House Comm. on Educ. and Labor, 103d Cong.

Hearings on H.R. 5, The IDEA nemeens Act of
1997: Before the Subcomm. on Early Childhood,
Youth & Families of the House Comm. on Educ.
& the Workforce, 105th Cong. (1997) .........:ccccseeeeeeeeees 28

Hearings on the Individuals with Disabilities
Education Act: Before the Subcomm. on Early
Childhood, Youth & Families of the House Comm.
on Economic and Educational Opportunities,
Ricca 27

vi

TABLE OF AUTHORITIES — Continued

Page
Reauti.orization of the Individuals with Disabilities
Education Act: Before the Senate Comm. on
Labor & Human Resources, 105th Cong. (1997).......... 28
a 29
150 Cong. Rec. $5353 (daily ed. May 12, 2004)................ 12

MISCELLANEOUS:

Joseph Berger, Private Schooling for the Disabled,
and the Fight Over Who Pays, N.Y. Times, March
I a 11

Jay G. Chambers et al., Special Education
Expenditure Project, Center for Special
Education Finance, Total Expenditures for
Students with Disabilities, 1999-2000: Spending
Variation by Disability, Report 5 (June 2003)............... 14

Jay G. Chambers et al., Special Education
Expenditure Project, Center for Special Education
Finance, Characteristics of High-Expenditure
Students With Disabilities, 1999-2000, Report 8

General Accounting Office, Special Education:
Numbers of Formal Disputes Are Generally Low
and States Are Using Mediation and Other
Strategies to Resolve Conflicts (GAOQ-03-897)

Jay P. Greene & Marcus A. Winters, Debunking a
Special Education Myth: Don’t Blame Private
Options For Rising Costs, Education Next
(Spring 2007), available at http://www.hoover.
org/publications/ednext/60 18321 html 0.0.0.0... cee 11

vii

TABLE OF AUTHORITIES — Continued

Thomas Hehir et al., Comprehensive Management
Review and Evaluation of Special Education,

ee Bk, SD cencncnsnnesnsennsenmmnemannensntameginnes

David Herszenhorn, New Deputy Says Fixing
Special Education is Paramount, N.Y. Times,

Mar. 19, 2004, at iveicnusand Seccccccdcccccccccccccscccoesoccoocccs

National Council on Disability, Back to School on
Civil Rights: Advancing the Federal Commitment

to Leave No Child Behind (January 25, 2000) ...15, 16, 19

National Council on Disability, Serving the Nation’s
Students with Disabilities: Progress and

Prospects (March 4, 1998) ..........ccccccccrosssssccsseseeseseses

New York City Department of Education, School
Based Expenditure Reports School Year 2003-2004
Citywide, http://Awww.nycenet.edu/offices/d_chanc_

oper/budget/exp0 1/y2003_2004/function.asp .............

New York State Office of Vocational and
Edurational Services for Individuals with
Disabilities, New York State Education
Department, New York State Part B Annual
Performance Report 2003-2004, http://www.vesid.

nysed.gov/sedcar/apr/apr0304data/appeigt5.htm....

New York State Office of Vocational and Educational
Services for Individuals with Disabilities, New
York State Education Department, New York State
Annual Performance Report for 2005-06: IDEA
Part B State Performance Plan 2005-2010

SE CEI inctrnninnsctinnintrenensenenntanlienineniednen

TABLE OF AUTHORITIES - Continued

Office of Financial & Management Reporting, New
York City Department of Education, School
Based Expenditure Report School Year 1999-2000,
Report 5: Expenditures by Function, Student Type
and Instruction Level, http/Awww.nycenet.edw/offices/
d_chanc_oper/budget/exp01/y1999_2000/function.

ee ciicecctichtiesiincnniisienintaitenitd cenasiniiiatintiainiteiniiapnetaniaianialatainipi

Ellen Schiller, et al., Abt Associates, Inc., Marking
the Progress of IDEA Implementation (April

SPIED crasnevnseneunyecusvemsnenensemeeveienuasnenasevenemensieremengsenues

Ellen Schiller, et al., Abt Associates, Inc., Volume 1:
The SLIIDEA Sourcebook Report (1999-2000,
2002-2003, 2003-2004, and 2004-2005 School

IED cernictneveciierisantenantcttinisonnnitimetinns

Judy Schrag & Howard Schrag, National
Association of State Directors of Special
Education, National Dispute Resolution Use and

Effectiveness Study (September 2004)......................

Mary Wagner et al., Special Education Elementary
Longitudinal Study (SEELS): The Children We
Serve: The Demographic Characteristics of
Elementary and Middle School Students with

Disabilities and Their Households (2002) ................

Mary Wagner et al., The Individual and Household
Characteristics of Youth With Disabilities: A
Report from the National Longitudinal

Transition Study-2 (NLTS-2) (2003) ..............cccceceeee

U.S. Commission on Civil Rights, Accommodating

the Spectrum of Individual Abilities (1983) .............

Page

—

ix
TABLE OF AUTHORITIES — Continued

U.S. Department of Education, Nineteenth Annual
Report to Congress on the Implementation of the
Individuals with Disabilities in Education Act

U.S. Department of Education, Twentieth Annual
Report to Congress on the Implementation of the
Individuals with Disabilities in Education Act

Yilu Zhao, Rich Disabled Pupils Go to Private
Schools at Public Expense, Levy Says, N.Y.
pT Oe

1

INTEREST OF AMICI CURIAE’

This case is of particular interest to amici curiae, who
advocate on behalf of children with disabilities to ensure
that they receive the free appropriate education they are
guaranteed under the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. § 1400 et seq.

Amicus National Disability Rights Network (NDRN),

_. formerly the National Association of Protection and

Advocacy Systems, is ‘the’ membership association of .
protection and advocacy (P&A) agencies that are located in
all 50 States, the District of Columbia, Puerto Rico, and
the territories. P&As are authorized under various federal
statutes to provide legal representation and related
advocacy services on behalf of persons with all types of
disabilities in a variety of settings. In fiscal year 2006,
P&As served more than 74,000 persons with disabilities
through individual case representation and systemic
advocacy. ,

The P&A system comprises the nation’s largest
provider of legally based advocacy services for persons
with disabilities. P&A lawyers often represent or assist
parents of children with disabilities in the impartial due
process hearings authorized under the IDEA and know
first-hand that often school districts do not provide
appropriate special education and related services, forcing
parents to make unilateral placement decisions.

Amicus New York Lawyers for the Public Interest
(NYLPI) is one of New York’s federally-funded P&A
agencies. Founded in 1976 as a partnership between the
public and private bars to assist disadvantaged and
underrepresented people in New York City, NYLPI

' Letters from the parties consenting to the filing of amicus curiae
briefs have been filed with the Clerk of this Court pursuant to Supreme
Court Rule 37.3(a). No counsel for a party authored this brief in whole
or in part, and no person or entity, other than the amici curiae, their
members, or their counsel, made a monetary contribution to the
preparation or submission of this brief.

2

conducts advocacy and litigation concerning disability
rights, access to health care, and environmental justice.
Through its Disability Law Center, NYLPI has a long
history of advocacy for children with disabilities on
educational issues. NYLPI filed an amicus brief in the
court of appeals in this case urging that court to reverse
the judgment of the district court.

SUMMARY OF AP 7UMENT

The Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. § 1400 et seg., requires that a State that
accepts federal IDEA funds (and its school districts)
provide to each child with a disability a free appropriate
education tailored to accommodate the child’s disability
and to achieve educational benefit. If a school district
violates this statutory mandate, a court may, after
exhaustion of administrative procedures, “grant such relief
as the court determines is appropriate” for violations of
the statute. 20 U.S.C. § 1415(i)(2)(C (iii). This broad grant
of remedial authority has twice been interpreted by this
Court to authorize a court order to a school district to
reimburse parents for their reasonable expenditures on
private special education for a child if the court ultimately
determines that such placement, rather than the school
district’s proposal, is proper under the IDEA. See School
Comm. of the Town of Burlington v. Dep’t of Educ., 471
U.S. 359 (1985); Florence County Sch. Dist. v. Carter, 510
U.S. 7 (1993). Congress has not repealed tiuat equitable
authority.

A. 1. Contrary to the overstated rhetoric of
petitioner and its amici, a ruling in favor of the parent in
this case should not impose a significant burden on school
districts. Fewer than 1.5% of children with disabilities
have been placed in private school over the past two
decades, in order to receive an appropriate special
education and related services. Most of those children are
placed in private schools with the consent of the public
school district and do not implicate the reimbursement
remedy at issue in this case. Unilateral placement of

3

children with disabilities in private schools by their
parents because of a public school’s failure to offer the
appropriate education required by federal law constitutes
some very small part of that already narrow slice of
children in private placements,

2. The popular press repeatedly quotes disgruntled
school officials describing private placements as an
epidemic of the “greedy needy” — wealthy parents “gaming
the system.”- The claim is that parents seek
reimbursement for private school settings for children
with trivial disabilities (sometimes implying that perhaps
the children are not experiencing a disability at all but
merely seeking an advantage) and for amounts of money
far in excess of what would be spent in public school. But
this claim is not supported by real data. To the contrary,
the facts demonstrate that the IDEA benefits
predominantly lower-income children with disabilities,
that the children who are most likely to be placed in
private schools are those with less common disabilities,
and that the cost of private placement is not significantly
greater and, in places like New York City, can actually be
less than that spent in public school.

3. Petitioner and its amici gloss over the fact that
the decisions by hearing officers and judges to reimburse
parents of children with disabilities placed in private
school are based on findings that public school systems did
not comply with the IDEA because they did not offer an
appropriate education for the children. Compliance and
monitoring reports by the United States Department of
Education have revealed that in many localities, school
districts are not in compliance with federal law. The
myriad of cases in which federal and state courts have
made similar findings confirms this fact. New York reflects
this national reality. New York has been out of compliance
with various of the IDEA’s requirements for decades.

B. The equitable authority of courts to order
reimbursement for those relatively few children who must
be placed in private school in order to receive the free

4

appropriate education provided by the IDEA has not been
curtailed by Congress.

1. In Burlington and again in Carter, this Court held
that the IDEA authorizes courts to order reimbursement of
reasonable private schoo] tuition if a school district is not
offering an education appropriate for a child with
disabilities. Contrary to petitioner’s argument, 20 U.S.C.
§ 1412(a)(10\C), first enacted in 1997, did not create a new
categorical limitation on the remedies available for
violations of the IDEA. This Court had relied in those
leading opinions on two statutory provisions to determine
that courts can award tuition reimbursement and
Congress has not altered either of them (save for changes
in terminology).

2. The IDEA does not include the clear statement
that would be necessary for Congress to restrict the
remedial authority of courts. If Congress wishes to divest
courts of their broad equitable authority, Congress must
do so by a “clear and valid legislative command.” United
States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483,
496 (2001). A statute that merely identifies particular
equitable remedies that can be awarded does not
constitute the necessary clear statement to divest courts of
their general authority to award other equitable remedies.
See Porter v. Warner Holding Co., 328 U.S. 395 (1946);
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288
(1960).

3. Other basic tools of statutory construction confirm
that petitioner’s reading of the statute cannot be
sustained.

First, reading the statute as petitioner suggests could
lead to absurd results. For example, it would apparently
deny reimbursement to a child with a disability if the child
“received” no special education and related services, even
if the school district acknowledged in an IEP that the child
should be receiving such education and services, while it
would permit reimbursement if the child had received
some special education and related services but enrolled in
a private placement that could provide the child a// the

5

appropriate education and services. Second, it would
encourage parents to place a child with a disability in a
placement they believe to be unreasonable and potentially
harmful simply to have shown that they “tried it out.”
Their child with a disability, in the mean time, will lose
the educational value of that time - an educational
opportunity that cannot be recouped and which may create
even further learning difficulties for the child.

Nothing in the legislative history suggests that
Congress intended this result or sought to eliminate the
equitable authority of courts to provide relief for children
who never received special education under the authority
of a public agency if the parents can establish that the
school district is not offering an appropriate education. To
the contrary, to the extent this issue was discussed at all,
the legislative history confirms that Section 1412(a)(10)(C)
was intended to codify the prevailing case law that notice
to the school district of an intent to place a child in private
school because of dissatisfaction with the proposed IEP is
a relevant factor for a court to consider in exercising its
remedial discretion.

ARGUMENT

SECTION 1412(a)(10)(C) OF THE IDEA DOES NOT
RESTRICT JUDICIAL AUTHORITY TO AWARD
REIMBURSEMENT FOR NEEDED PRIVATE
SCHOOL PLACEMENT WHEN A CHILD DID NOT
PREVIOUSLY RECEIVE SPECIAL EDUCATION
UNDER THE AUTHORITY OF A PUBLIC AGENCY

The Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. § 1400 et seqg., “creates a right,
enforceable in federal court, to the free appropriate public
education required by the statute.” Smith v. Robinson, 468
U.S. 992, 1002 n.6 (1984). The IDEA requires that a State
that accepts federal IDEA funds (and its school districts)
provide each child with a disability with a free appropriate
education tailored to accommodate the child’s disabilities

6

and to achieve educational benefit. See Board of Educ. v.
Rowley, 458 U.S. 176, 209 (1982).’

If a school district violates this statutory mandate, a
court may, after exhaustion of administrative procedures,
“grant such relief as the court determines is appropriate”
for violations of the statute. 20 U.S.C. § 1415(i2)(C)(iii).
This broad grant of remedial authority has twice been
interpreted by this Court to authorize a court order to
school districts to reimburse parents for their reasonable
expenditures on private special education for a child if the
court ultimately determines that such placement, rather
than a proposed IEP with a public school placement, is
proper under the Act. See School Comm. of the Town of
Burlington v. Dep't of Educ., 471 U.S. 359 (1985); Florence
County Sch. Dist. v. Carter, 510 U.S. 7 (1993).

Contrary to petitioner’s argument, 20 U.S.C.
§ 1412(a)(10)(C), first enacted in 1997, did not impose a
categorical limitation on the remedies available for
violations of the IDEA. Rather, Section 1412(a)(10)(C)
identifies factors that a court “may” consider in exercising
its remedial discretion in a particular category of cases in
which a child who “previously received special education
and related services under the authority of a public
agency” has been denied the federal right to a free
appropriate education and the parents, in the interim,
have placed the child in private school.

Congress intended this provision to clarify the nature
of the notice and cooperation obligations that parents owe
school districts by codifying the consistent body of case law
that had developed after Burlington and Carter to guide a
court’s remedial discretion in awarding reimbursement. As
respondent documents in his brief, that case law held that

* The free appropriate education is supposed to be reflected in the
particular child’s “IEP,” the Individualized Education Program devel-
oped by a team of teachers, parents, and school administrators to,
among other things, describe the regular education, special education
and related services, and other accommodations necessary to provide a
student with an appropriate education. 20 U.S.C. § 1414(d).

—_

7

public school districts must normally be given an
opportunity to propose an appropriate placement before
parents are allowed to seek tuition reimbursement for a
unilateral private placement. See Resp. Br. 19-20. There is
no evidence that Congress intended, by implication, to
preclude categorically any judicial reimbursement remedy
to parents whose child had not previously received special
education and related services under the authority of a
public agency.

A. IT Is RARE FoR PARENTS TO UNILATERALLY PLACE
A CHILD WITH DISABILITIES IN A PRIVATE SCHOOL
BASED ON A PUBLIC SCHOOL’S FAILURE TO OFFER
THE APPROPRIATE EDUCATION REQUIRED By
FEDERAL LAW

Contrary to the overstated rhetoric of petitioner and
its amici, a ruling in favor of the parent in this case should
not pose a significant burden on school districts. By
contrast, a ruling in favor of petitioner would eliminate
the only form of relief that can provide redress to parents
who correctly act on the fact that a school district’s
proposed educational program for their child with
disabilities would not constitute an appropriate education
for the child.

1. The incidence of due process complaints
seeking reimbursement for private placement
is extremely small

Anecdotal stories that allege a trend of soaring private
school placements for children with disabilities should not
be confused with the facts. The United States Department
of Education has tracked private placements for several
decades. From a quantitative standpoint, the number of
children with disabilities who are placed in private school
is low and such placement by parents without the
concurrence of the school district is extremely small.

In 2005, only 1.44% of children receiving services
under the IDEA were in private placements at public

8

expense (88,098 children out of 6,110,829 children).’
Moreover, the percentage of children in publicly funded
private placements is not soaring. In fact, it has not
changed significantly over the last 21 years, and has
actually declined since 2001.‘

The majority of private placements are “agreed
placements,” meaning that the school district and parents
agree that the private placement is necessary to provide
the child with an appropriate education. See 20 U.S.C.
§ 1412(a)(10)(B) (discussing children with disabilities who
“are placed in, or referred to” private schools “by the State
or appropriate local educational agency as the means of
carrying out the requirements of” the IDEA); Amicus Br.
of Nat'l School Bd. Ass’n, at 20 (acknowledging that the
“overwhelming majority of these [private] placements were
ones that school districts agreed were appropriate to
ensure the child in question received the education
mandated by IDEA”). Amici are not aware of a study that
reports how many of these relatively few private
placements were unilateral parent placements for which
the school district has been ordered by a hearing officer or
court to pay reimbursement, but an examination of the
data regarding dispute resolution under the IDEA
demonstrates that the actual number of reimbursement
cases is miniscule.

* Data Tables for State OSEP Data, IDEA Part B Educational
Environment, Tbl. 2-5 (1996 through 2005) (2005), available at https://
www.ideadata org/tables29th/ar_2-5.htm.

* Since 1985, an average of 1.47% of all children served each year
under the IDEA were in private placements at public expense, ranging
from a high of 1.7% in 1986-87 to a low of 1.2% in 1993-94. Data Tables
for State OSEP Data, IDEA Part B Educational Environment, Tbl. 2-5
(1996 through 2005) (2005), available at https://www.ideadata.org/
tables29th/ar_2-5.htm; U.S. Department of Education, Twentieth
Annual Report to Congress on the Implementation of the Individuals
with Disabilities Education Act, Appendix, Tbl. AB7 (1998) (1986-1996,
age group 6-21), U.S. Department of Education, Nineteenth Annual
Report to Congress on the Implementation of the Individuals with
Disabilities Education Act, Appendix, Tbl. AB7 (1997) (1985-1986, age
group 6-21).

| 9

A school system in New York, just as anywhere else in
the country, faces involuntary reimbursement of tuition for
a child with disabilities in a private placement only if a
due process hearing and any subsequent litigation
determines that the public school could not provide the
child an appropriate education. (Any other private
placement will be an agreed placement, which are not at
issue in this case.) It is rare for parent-school disputes to
reach a due process hearing. Despite the more than 6
million children with disabilities entitled to the IDEA’s
protection, only approximately 3000 due process hearings
are held nationwide each year.’

Disputes regarding private school placement
(including requests for due process hearings or mediation,
and other formal complaints to state agencies) are
extremely rare. Data from the National Association of
State Directors of Special Education reveal that of the
estimated 25,000 to 27,000 disputes filed annually, private
placement was the key issue in only 3.5% of disputes in
1999, 1.5% of disputes in 2000, and 3.3% of disputes in
2001. See Judy Schrag & Howard Schrag, National
Association of State Directors of Special Education,
National Dispute Resolution Use and Effectiveness Study,
at 18, 24-25 (September 2004).

The Council of the Great City Schools is certainly
correct when it notes, in its amicus brief in support of
petitioner (at 23), that the volume of disputes involving
tuition reimbursements in New York City is “unique.”
Indeed, many things about New York City make it atypical
of the way that the IDEA functions nationally.

* See General Accounting Office, Special Education: Numbers of
Formal Disputes Are Generally Low and States Are Using Mediation
and Other Strategies to Resolve Conflicts (GAO-03-897), at 12-13 (2003).
More than 80% of all due process requests are resolved or dropped
before a hearing is held - only 18.7% of due process hearings reach a
decision. Judy Schrag & Howard Schrag, National Association of State
Directors of Special Education, National Dispute Resolution Use and
Effectiveness Study, at 29-30 (September 2004) (74.9% are withdrawn
and 6.4% are dismissed).

10

The vast majority of school districts across the country
are not experiencing an increase in due process activity. To
the contrary, 90% of school districts had no due process
hearings at all in 2004-2005, and only 4% of school
districts were involved in IDEA litigation of any kind. See
Ellen Schiller, et al., Abt Associates, Inc., Marking the
Progress of IDEA Implementation, at 19-20 (April 2006).
Nor is there a trend toward more due process proceedings.
From 1999 to 2005, the 10% of school districts that had
any ongoing formal] dispute resolution procedures had a
median of only one dispute per year, a rate that did not
change over time. Jbid. Nationally, the median number of
due process hearings per 10,000 students decreased from
2.4 to 1.4 between 1999 and 2005. See Ellen Schiller, Abt
Associates, Inc., Volume 1, The SLIIDEA Sourcebook
Report (1999-2000, 2002-2003, 2003-2004, and 2004-2005
School Years), at 102 (April 2006).

By contrast, New York City had 1058 due process
hearings proceed to decision in 2004, a total of 9.7 per
10,000 students.* Yet, even then, only 102 of those due
process decisions involved parent tuition reimbursement.

* See New York City Department of Education, School Based
Expenditure Reports School Year 2003-2004 Citywide, accessed at
http://www.nycenet.edw/offices/d_chanc_oper/budget/exp0 1/y2003_2004/
function.asp (2003-04 enrollment was 1,086,866); see also GAO,
Numbers of Formal Disputes Are Generally Low, supra, at 13-14 (due
process hearings are concentrated in a small number of States -
California, Maryland, New Jersey, New York, Pennsylvania and the
District of Columbia, and, within those States, a smal] number of
primarily urban school districts).

” See New York State Office of Vocational and Educational Services
for Individuals with Disabilities, New York State Part B Annual
Performance Report 2003-2004, Appendix 18.5 (Distribution of Issues
for Decided Impartial Hearing Cases July 1, 2003 ~ June 30, 2004
Displayed by Upstate and New York City), http://www vesid nysed.
gov/sedcar/apr/apr0304data/appeigt5 htm.

11

2. Private placement costs generally are not
significantly greater than public special
education costs for comparable services and
there is no evidence that wealthy parents are
gaming the system

The popular press repeatedly quotes disgruntled
school officials describing private placements as an
epidemic of the “greedy needy.” The claim is that wealthy
parents are “gaming the system”. seeking reimbursement
for private school settings for children with trivial
disabilities (sometimes implying that perhaps the children
are not experiencing a disability at al] but merely seeking
an advantage) and for amounts of money far in excess of
what would be spent in public school.’ But this claim is
not supported by real data. To the contrary, the facts
demonstrate that the IDEA benefits predominantly lower-
income children with disabilities, that the children who
are most likely to be placed in private schools are those
with less common disabilities, and that the cost of private
placement is not significantly greater and, in places like
New York City, can actually be less than that spent in
public school.

a. The children who benefit most from IDEA are, by
and large, not the children of the wealthy. Rather the
IDEA’s guarantees benefit most those who cannot afford
other educational choices — children who are not only
disabled, but also disadvantaged in other ways. Families

* Jay P. Greene & Marcus A. Winters, Debunking a Special
Education Myth: Don’t Blame Private Options For Rising Costs,
Education Next (Spring 2007) (“Tales of the ‘greedy needy’ — disabled
students who receive unreasonably expensive services — appear regularly
in the media”), available at http:/Avwww.hoover.org/publications/ednext/
6018321.html. See, eg., Joseph Berger, Private Schooling for the
Disabled, and the Fight Over Who Pays, N.Y. Times, March 21, 2007, at
B7 (Spokesperson for Council for Great City Schools said, “Many
wealthy, well-educated people are gaming the system in New York City
and around the country.”); Yilu Zhao, Rich Disabled Pupils Go to
Private Schools at Public Expense, Levy Says, N.Y. Times April 17,
2002, at B7.

12

of children with disabilities are more often affected by
poverty than others. See Mary Wagner et al., Special
Education Elementary Longitudinal Study (SEELS): The
Children We Serve: The Demographic Characteristics of
Elementary and Middle School Students with Disabilities
and Their Households, at 28 (2002).

Children with disabilities are twice as likely to live
with someone other than a biological parent, and 30
percent of children with disabilities live in foster care. See
150 Cong. Rec. S5353 (daily ed. May 12, 2004). Almost 25
percent of children with disabilities are living in poverty,
compared with 16 percent of children in the general
population. See SEELS, supra, at 28. And parents of
children with disabilities are twice as likely to be
unemployed. See Mary Wagner et al., The Individual and
Household Characteristics of Youth With Disabilities: A
Report from the National Longitudinal Transition Study-2
(NLTS-2), at 3-7 (2003). Overall, 68 percent of children
with disabilities live in households with incomes less than
$50,000, compared to only 53 percent of nondisabled
children. See SEELS, supra, at 29.

Some parents make extreme financial sacrifices to
front the cost of private placement pending hoped-for
reimbursement. In New York, a few private schools are
willing to enroll a child with a disability whose parents
cannot afford to pay, and then wait to see whether the
parents can obtain an order under the IDEA for
reimbursement or, in some circumstances, prospective
authorization for payments. See, e.g., Connors v. Mills,
34 F. Supp. 2d 795, 804 (N.D.N.Y. 1998). Yet under
petitioner’s argument, there would be a category of
children who would never be entitled to reimbursement.
This could affect private schools’ decisions regarding the
enrollment of children of lesser financial means.

b. Private school placements at public expense are
usually provided for children with the types of disabilities for
which public schools have shown themselves least able to
provide an appropriate education. Almost three-quarters
(73%) of all private school placements are children

13

classified as emotionally disturbed, mentally retarded,
multiply-disabled, or autistic.” This is so even though such
children represent only 22% of all children served under
the IDEA. (These same children are also disproportionately
likely to request due process hearings. See National
Dispute Resolution Use and Effectiveness Study, supra, at
20-21.)

By contrast, children with learning disabilities and
speech/language disabilities--account for only 15% of
children in private placements, despite representing 70%
of children served under the IDEA. This is not because
these disabilities are trivial, as often portrayed in the
popular press; to the contrary, they often constitute
significant impediments to learning. Fortunately, however,
school districts have more experience, and greater success,
with these higher frequency disabilities. Of course, as
noted below, non-compliance with the IDEA is rampant
and thus it is disappointing, but not surprising, that
school districts are sometimes not able to provide an
appropriate education even for children with these more
common disabilities, leaving parents no choice but to rely
on private placements.

c. Whether educated in public school or private
school, it often costs more to educate a child with a
disability. Contrary to the views expressed by petitioner’s
amici, however, the cost does not vary significantly
between public and private schools.

When educated within the public school system,
students who are classified as emotionally disturbed,
mentally retarded, multiply-disabled, or autistic have
significantly higher per-pupil costs than other children
with disabilities. Almost three-quarters of the children

* Except as otherwise noted, the facts in this paragraph and the
next paragraph are drawn from the U.S. Department of Education's
Data Tables for State OSEP Data, IDEA Part B Educational Environment,
Tables 1-3 and 2-5 (2005), https:/Avww.ideadata. org/tables29th/ar_1-3.htm
and https://www. ideadata. org/tables29th/ar_2-5.htm.

14

that the Center for Special Education Finance refers to as
“high expenditure” students are drawn from children with
these disabilities: multiple disabilities (32.3%); autism
(17.2%); emotional disturbance (16.2%); and mental
retardation (7.1%).

The average cost of educating a “high expenditure
student” in public school in 1999-2000 was $39,909 for
elementary school, $35,924 for secondary school, and
$57,129 in a public school dedicated to special education."
Although no similar breakdown is available for private
schools, the average expenditure on tuition, fees, and other
special services for children with disabilities placed in
private schools or other public agencies was $25,580 in
1999.

In New York City, the per-pupil cost of special
education in public schools actually exceeds what
respondent seeks in reimbursement in this case. For the
1999-2000 school year, New York City reported that the
average cost to educate a special education student within
the regular public schools was $26,497, and the average
per pupil cost to educate a student at a public self-
contained special education school was $41,673." These

* See Jay G. Chambers et al., Special Education Expenditure Project,
Center for Special Education Finance, Characteristics of High-Expenditure
Students With Disabilities, 1999-2000, Report 8, at 21 (May 2004).

" See id. at 4-5.

“ See Jay G. Chambers et al., Special Education Expenditure
Project, Center for Special Education Finance, Total Expenditures for
Students with Disabilities, 1999-2000: Spending Variation by Disability,
Report 5, at v, 4-5 (June 2003).

” Office of Financial & Management Reporting, New York City
Department of Education, School Based Expenditure Report School Year
1999-2000, Report 5: Expenditures by Function, Student Type and
Instruction Level, http:/Avww.nycenet.edu/offices/d_chanc_oper/budget/exp0 l/
y1999_2000/function.asp?R=2. The Special Notes to the School-Based
Expenditure Report explain that Related Services costs are understated
for special education students, which suggests that the actual special
education costs are even higher than those reported. http://www.
nycenet.edu/offices/d_chanc_oper/budget/exp0 l/y 1999 2000/appendix.a
sp#_HOW_EXPENDITURES_WERE_3.

15

numbers are significantly greater than the average
settlement paid by New York City in unilateral placement
cases from 2003 to 2006, which its amicus claims ranged
from $13,717 to $18,552. See Amicus Br. of Council of
Great City Schools, at 22.

3. Private placement costs fall only on school
ee eae ee ee SO
education required by federal law

Many of the objections voiced by petitioner and its
amici are objections to the cost of special education or
court-ordered placements generally. They gloss over the
fact that those decisions by hearing officers and judges to
reimburse parents of children with disabilities placed in
private school are based on findings that public school
systems did not comply with the IDEA because they did
not offer an appropriate education for the children. Those
decisions are not easily reached. In light of this Court’s
recent decision in Schaffer v. Weast, 546 U.S. 49, 59-60
(2005), parents will (absent state law to the contrary)
normally bear the burden of proof of showing that the
school district’s proposal does not comply with the IDEA.
Furthermore, the IDEA now makes clear (in a provision
enacted after the events at issue in this case) that certain
procedural violations of the IDEA are not sufficient to
have an JEP declared invalid. See 20 U.S.C. § 1415(f)(3).

Compliance and monitoring reports by the United
States Department of Education have revealed that in
many localities, school districts are not in compliance with
federal law. The myriad of cases in which federal and state
courts have made similar findings confirms this reality.

The National Council on Disability, an independent
federal agency, succinctly summarized the Department of
Education’s findings: “Every state was out of compliance
with the IDEA requirements to some degree; in the
sampling of states studied, noncompliance persisted
over many years.” National Council on Disability, Back
to School on Civil Rights: Advancing the Federal
Commitment to Leave No Child Behind, at 7 (January 25,

16

2000). Indeed, seven years earlier, the same federal
agency reported that the Department of Education had
determined that “150 of the 165 local public agencies”
surveyed were “in varying degrees of noncompliance with
federal and state JEP mandates” and that another
Department of Education study of 40 local school districts
across 21 States found that almost 10 percent of students
with disabilities “either do not have an IEP or have not
been properly evaluated” in violation of federal law.
National Council on Disability, Serving the Nation’s
Students with Disabilities: Progress and Prospects, at 3, 25
(March 4, 1993).

The United States Commission on Civil Rights
likewise reported, based on a Department of Education
survey, that tens of thousands of children with disabilities
“continue to be excluded from the public schools, and
others are placed in inappropriate programs.” U.S.
Commission on Civil Rights, Accommodating the Spectrum
of Individual Abilities 28 & n.77 (1983).

New York reflects this national reality. New York
has been out of compliance with various of the IDEA’s
requirements for decades. See National Council on
Disability, Back to School on Civil Rights, supra, at 142-143.
In 1979, a federal court found in a class action lawsuit
that New York and New York City had “not made available
to the plaintiff class [of children with disabilities] a free
appropriate public education in a timely :naanner, thus
violating the requirements of federal law.” Judgment, at 6,
Jose P. v. Ambach, Civ. No. 79-270 (E.D.N.Y. Dec. 14,
1979), available at http://www.advocatesforchildren.org/
litigation/litdocs/josepdocs/JosePJudgment_Dec79. pdf.

That lawsuit has documented the continuing failure of
petitioner to comply with the IDEA. A recent independent
evaluation of the New York City special education
program, paid for by the petitioner, noted that “the
continued Jose P. litigation [has] demonstrated, the NYC
Department of Education, like many large urban school
districts, has long-standing significant problems in
meeting its obligation to provide quality education to its

17

students with disabilities within federal and state legal
requirements.” Thomas Hehir et al., Comprehensive
Management Review and Evaluation of Special Education,
at 15-19, 47-49 (September 20, 2005). For example, during
the 2004-2005 school year, the percentage of eligible
students who did not receive special education placements
within 60 days (as required by state regulations) ranged
from 54% to 92%, depending on the month. Jd. at 65. The
percentage of special education students entitled to related
services who were not receiving them ranged from 10% to
66%, depending on the month and the particular services.
Id. at 42.

There is also a comprehensive body of state
administrative decisions documenting the fact that the
New York City Department of Education does not provide
the appropriate education required by federal law. See,
e.g., Application of Child with a Disability, Appeal No. 05-
010 (March 16, 2005) (finding that the school district had
failed to offer an appropriate placement to a child with
quadriplegis who had previously thrived in mainstream
environment but was offered a classroom where all the
students were severely disabled and non-verbal);
Application of a Child with a Disability, Appeal No. 03-078
(October 30, 2003) (finding that the school district failed to
offer an appropriate placement to a tenth grade student
with a learning disability who was functioning at a fourth
grade level but was offered a placement in the same
general education setting with related services in which he
had previously failed to advance and, in the following year,
was improperly denied any special] education services).

School districts in New York sometimes concede
during due process hearings that they have failed to offer
an appropriate education. In Application of a Child with a
Disability, Appeal No. 01-108 (March 26, 2002), for
example, the school district “failed, by its own admission,
to develop a valid IEP and make a timely placement” for
an emotionally disturbed child.” In another case arising
out of Hyde Park, New York that is pending before this
Court, the school board is challenging a family’s placement
of a child in a private school despite the fact that the

18

schoo] system conceded at the due process hearing that its
proposed IEP did not offer an appropriate education for
the child with a disability. Frank G. v. Board of Educ., 459
F.3d 356, 361 (2d Cir. 2006), petition for cert. pending, No.
06-580."

Even when the school district offers an appropriate
education, it often does not deliver the special education
and related services described in the IEP - services that,
by definition, the school district has itself agreed are
necessary to an appropriate education. The facts in
Application of a Child with a Disability, Appeal No. 99-21
(January 13, 2000), represent a typical scenario. In that
case, the services recommended by the State for a child
with Erb’s Palsy and Tourette’s Syndrome were not
available at the placement offered by the school district.
Accordingly, the state hearing officer found that the school
district had failed to provide an appropriate education,
noting that “[a] placement which cannot be implemented
is not an appropriate placement.” See also X v. New York
State Educ. Dept, 975 F.Supp. 546 (S.D.N.Y. 1997)
(finding that the school district failed to provide an
appropriate education to a child with autism where the
offered placement did not have the services mandated by
the IEP); David Herszenhorn, New Deputy Says Fixing
Special Education is Paramount, N.Y. Times, March 19,
2004, at B6 (reporting that 9,963 students were awaiting
counseling, 15,354 were awaiting speech therapy, 10,533
were awaiting occupational therapy and 4,023 were
awaiting physical therapy).

" According to the facts as described in the court of appeals’
opinion, the child’s declining performance at a Catholic school prompted
his parents to request an evaluation from the public school. During the
evaluation process, an independent neuropsychologist recommended
that the child, who had been diagnosed with attention deficit hyperac-
tivity disorder at the age of three, be placed in a small classroom of 12
students with an aide and related services. The school district's IEP
nonetheless proposed a classroom of 26-30 students.

19

B. CONGRESS Dip Nor CLEARLY MANIFEST AN INTENT To
PROHIBIT COURTS FROM ORDERING REIMBURSEMENT
WHEN A SCHOOL DISTRICT VIOLATES FEDERAL LAW

The authority of courts to order reimbursement for
the relatively few children who must be placed in private
school in order to receive the free appropriate education
provided by the IDEA has not been curtailed by Congress.
_. When parents are confronted with a school district that
is violating federal law by its failure to propose or provide
their child a free appropriate education, as required by the
IDEA, they are dependent on the federally-designed
administrative “due process” proceedings and ultimately on
the courts to vindicate their federal rights. It takes time,
however, for this comprehensive process to resolve
disputes. In Burlington, this Court described the process
as “ponderous” and took note of the fact that a “final
judicial decision on the merits of an IEP will in most
instances come a year or more after the school term
covered by that IEP has passed.” 471 U.S. at 370. Indeed,
States (including New York) are often in violation of the
IDEA’s requirements for how long a due process
proceeding may take. See Nationa] Council on Disability,
Back to School on Civil Rights, supra, at 121 (Department
of Education found 36% of States failed to resolve due
process hearings within the 45 days required
by regulations); Office of Vocational and Educational
Services for Individuals with Disabilities, New York State
Education Department, New York State Annual
Performance Report for 2005-06: IDEA Part B State
Performance Plan 2005-2010, at 73-74 (February 2007)
(only 83.4% of due process hearing; meet regulatory
timelines).

The question here is whether the IDEA leaves parents
of children with disabilities only the choice between
accepting the school district’s proposed IEP for an
education that is not appropriate or paying for an
appropriate placement on their own dime.

20

In School Committee of the Town of Burlington v.
Department of Education, 471 U.S. 359, 372 (1985), and
again in Florence County School District v. Carter, 510
U.S. 7 (1993), this Court held that Congress did not intend
to force parents to choose between “an appropriate
education and a free one.” The Court held that the IDEA
authorizes parents to receive reimbursement of reasonable
private school tuition if the school district was not offering
an appropriate education.

There is no clear statement in the text of the current
IDEA that restricts the remedial authority of the courts to
order such reimbursement and thus no basis for this Court
to overrule those holdings.

1. Congress has not altered the statutory
provisions that this Court correctly interpreted
in Burlington and Carter to authorize courts to
order reimbursement when federal law has
been violated

Petitioner contends that Congress’s addition of Section
1412(aX10\C) in 1997 eliminated the authority of the
courts to award tuition reimbursement as a remedy for
violation of federal law when the victim of the federal law
violation, the child with a disability, has not “previously
received special education and related services under the
authority of a public agency.” But Congress did not so
provide.

This Court relied on two statutory provisions as the
basis for its determinations in Burlington and Carter that
courts can award reimbursement. Congress did not alter .
either of those provisions (save for changes in terminology)
in 1997 or by subsequent amendments. First, the Court
looked to Section 1400(d)(1), which sets forth the purpose
of the IDEA: to ensure that all children with disabilities
(formerly described as “handicapped” children) “have
available to them a free appropriate public education that
emphasizes special education and related _ services
designed to meet their unique needs” and to ensure “that
the rights of children with disabilities and parents of such

Bs) “
children are protected.” 20 U.S.C. § 1400(d)(1). Second, the
Court relied on Congress’s grant to federal courts the
authority to hear claims by aggrieved parents that their
statutory rights were being violated without regard to the
amount in controversy and authorized those courts to

“grant such relief as the court determines is appropriate”
for violations of the statute. Jd. §§ 1415(i)(2)(A) & (C)(iii).

In Burlington, the Court held in a unanimous opinion
- by Chief Justice Rehnquist- that the language-used by.-
Congress in that grant of authority to award “appropriate”
relief “confers broad discretion on the court.” 471 U.S. at
369. The Court concluded that “the only possible
interpretation is that the relief is to be ‘appropriate’ in
light of the purpose of the Act,” which the Court described
as “principally to provide handicapped children with ‘a
free appropriate public education which emphasizes
special education and related services designed to meet
their unique needs.” The IDEA, the Court noted,
contemplates that such an education may be provided in
private schools at public expense. Jbid.; see 20 U.S.C.
§ 1412(aX10)(B) (discussing school district’s obligations
when children with disabilities “are placed in, or referred
to” private schools “by the State or appropriate local
educational agency as the means of carrying out the
requirements of” the IDEA).

The Court explained that, absent an equitable remedy
of reimbursement, the parents were faced with the
Hobson’s choice to accept a school district’s proposed
placement “to the detriment of their child if it turns out to
be inappropriate or pay for what they consider to be the
appropriate placement.” 471 U.S. at 370. The Court
concluded that “[iJf that were the case, the child’s right to
a free appropriate public education, the parents’ right to
participate fully in developing a proper IEP, and all of the
procedural safeguards would be less than complete.” Jbid.
Congress “undoubtedly” could not have intended that
result. Jbid. This Court was therefore “confident that by
empowering the court to grant ‘appropriate’ relief
Congress meant to include retroactive reimbursement to
parents.” Ibid.

22

In Carter, the Court unanimously reaffirmed that the
“IDEA’s grant of equitable authority empowers 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.’” Carter, 510
U.S. at 12. The “IDEA was intended to ensure that
children with disabilities receive an education that is both
appropriate and free. To read the provisions of [the IDEA]
to bar reimbursement in the circumstances of this case
would defeat this statutory purpose.” Jd. at 13-14 (internal
citation omitted). The Court clarified that parents are
“entitled to reimbursement only if a federal court
concludes both that the public placement violated IDEA
and that the private school placement was proper under
the Act.” Jd. at 15. In addition, courts “fashioning
discretionary equitable relief under IDEA must consider
all relevant factors,” and can reduce or eliminate
reimbursement based on “equitable considerations.” Jd. at
16.

The broad statutory grant of authority in Section
1415(i)(2)(C (iii) to award “appropriate” relief, relied on by
the Court in both Burlington and Carter, has not been
amended. Nor have the purposes of the IDEA. Thus,
nothing in the text of the IDEA reflects an intent by
Congress to constrict the power of the courts to award
“appropriate” relief, including reimbursement of tuition, to
parents under appropriate circumstances.

Section 1412(a)(10\C) describes circumstances under
which the courts “may” grant or deny reimbursement
when a child “previously received special education and
related services under the authority of a public agency.”
But that provision does not prohibit the exercise of a
court’s equitable authority to award reimbursement to
parents in circumstances that fall outside the scope of
Section 1412(a)(10\C). Indeed, as we discuss next, any
such repeal of equitable authority would require a clear
statement on the part of Congress, something that is
lacking in Section 1412(a)(10)(C) because such a repeal

23

cannot be inferred from a positive grant of authority to
provide relief in other cases.

2. Section 1412(a)(10)(C) does not contain a clear
statement restricting the courts’ previously
recognized equitable authority to award
reimbursement to remedy a violation of
federal law

This Court has consistently recognized that once
Congress confers jurisdiction on a federal court over a
cause of action, the court possesses “all the inherent
equitable powers *** available for the proper and
complete exercise of that jurisdiction.” Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946). The scope of this
equitable authority is as broad as the violation warrants
because Congress’s act of vesting jurisdiction in an equity
court must be understood in light of the “historic power of
equity to provide complete relief in the light of statutory
purposes.” Mitchell v. Robert DeMario Jewelry, Inc., 361
U.S. 288, 291-292 (1960); see also Porter, 328 U.S. at 399;
cf. Swann v. Charlotte-Mecklenburg Bd. of Educ. , 402 U.S.
1, 15 (1971) (“Once a right and a violation have been
shown, the scope of a district court’s equitable powers to
remedy past wrongs is broad, for breadth and flexibility
are inherent in equitable remedies.”).

If Congress wishes to divest federal courts of their
broad equitable authority, Congress must do so by a “clear
and valid legislative command.” United States v. Oakland
Cannabis Buyers’ Coop., 532 U.S. 483, 496 (2001); see also
Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (holding
that federal courts retain their full equitable authority
“laJbsent the clearest command to the contrary from
Congress”); Porter, 328 U.S. at 398 (providing that the
“comprehensiveness” of a court’s equitable authority can
be limited only by a “clear” legislative command).

Thus, this Court has held that a statute that identifies
particular equitable remedies that can be awarded does
not contain the needed clear statement to divest courts of
their general equitable authority to award other equitable

24

remedies. See Porter, 328 U.S. at 398-399. This is precisely
the type of inference that is insufficient to constitute a
clear statement by Congress to divest federal courts of
authority. “The great principles of equity, securing
complete justice, should not be yielded to light inferences,
or doubtful construction.” Jd. at 398 (quoting Brown uv.
Swann, 35 U.S. 497, 503 (1836)).

As Justice Frankfurter explained for the Court, “{o|ne
thing (that) is clear” is that “[w)]here Congress wished to
deprive the courts of this historic [equity] power, it knew
how to use apt words.” Scripps-Howard Radio, Inc. v.
FCC, 316 U.S. 4, 11, 17 (1942). If there is any statutory
ambiguity, it thus must be read in favor of the courts
retaining their full equitable authority. This is true even if
it is clear that Congress intended to impose some limits on
the courts’ remedial authority. In Mitchell, for example,
this Court held that a statutory provision denying courts
the authority to award “unpaid minimum wages” under
the Fair Labor Standards Act as part of restitution did not
prohibit a court from awarding unpaid wages incident to a
wrongful discharge claim under the same Act. The Court
emphasized that there was “no warrant” for construing the
provision as “a _ general repudiation of equitable
jurisdiction to order reimbursement to effectuate the
policies of the Act.” 361 U.S. at 295-296.

Section 1412(a)(10)C) does not meet the clear
statement rule articulated in Porter, Mitchell, and their
progeny. It cannot be read to preclude categorically any
reimbursement remedy to parents whose child with a
disability has not previously received special education
and related services under the authority of a public
agency. Instead, as respondent argues, that provision
simply identifies factors that a court “may” consider in
exercising its discretion. As noted above, those factors
reflect the consistent body of case law that developed after
Burlington and Carter to guide the courts’ remedial
discretion in awarding “appropriate” relief under Section
1415(i 2) C iii).

25

3. Petitioner’s reading of Section 1412(a)(10)(C)
would lead to absurd results and is not
supported by legislative history

Other basic tools of statutory construction confirm
that petitioner’s reading of the statute cannot be sustained
to categorically exclude from the equitable remedy of
reimbursement children with disabilities who had not

___ “previously received special education and related services
established that they have been denied an appropriate
education by the public school.

a. Reading the statute as petitioner suggests could
lead to absurd results, contrary to a fundamental rule of
construction. See, e.g., United States v. Kirby, 74 U.S. 482,
486 (1868) (“All laws should receive a_ sensible
construction. General terms should be so limited in their
application as not to lead to injustice, oppression, or an
absurd consequence.”).

First, it would apparently deny reimbursement to a
child with a disability if the child “received” no special
education and related services, even if the school district
acknowledged that the child should be receiving such
education and services. For example, if a child is enrolled
in public school and the IEP provides that she is to receive
special education and related services, but the school
district cannot, for whatever reason, provide any of them
to the child, then she has not “received” any education or
services under the authority of the school district and,
under petitioner’s view, would apparently not be entitled
to a reimbursement remedy if her parents placed her in
private school where she could get the services. Instead,
the parent’s only remedy under petitioner’s view of the
IDEA would be to seek a due process hearing to challenge
the failure to provide the services that the school already
has acknowledged are necessary and had promised to
provide and to allow their child to remain in public school
without receiving services until those proceedings are
completed. At the same time, petitioner’s reading would
apparently permit reimbursement to a child who received

26

some special education and related services but enrolled in
a private placement that could provide all the education
and services appropriate.

Second, petitioner’s reading of the statute would
require parents, in order to become eligible for
reimbursement, to accede to the child’s placement in a
clearly inappropriate setting for some undefined period of
time simply to have shown that they “tried it out.”
Meanwhile, that child with a disability will lose the
educational value of that time - an _ educational
opportunity that cannot be recouped and which may create
even further learning difficulties for the child. Section
1412(aX10XC) expressly permits a court to order
reimbursement even absent notice in situations in which
physical or emotional harm might result from the public
school placement. See 20 U.S.C. § 1412(a)(10)(C iv) (ce)
& (II)bb). Yet petitioner would apparently always
preclude reimbursement when such harm would befall a
child who had not previously received special education
and related services under the authority of the school
district.

b. Nothing in the legislative history suggests that
Congress intended this result or sought to eliminate the
courts’ equitable authority to provide relief for children
who did not previously receive special education and/or
related services under the authority of a public agency, so
long as the parents can demonstrate that the school
district is not offering an appropriate education.

To the contrary, to the extent this issue was discussed
at all, the legislative history confirms that Section
1412(a10)C) was intended to codify the prevailing case
law that whether parents provide notice to the school
district that they intend to place their child in private
school because of dissatisfaction with the proposed IEP is
a relevant factor for a court to consider in exercising its
remedial discretion.

The small amount of discussion at the hearings
regarding the reimbursement issue prior to 1997 reflects
only a desire that Congress clarify that notice and

27

cooperation by parents were appropriate factors that
should be considered in determining whether to award
reimbursement. There was no suggestion that children
who had not previously received special education or
related services from a school district should never receive
reimbursement, the view currently urged by petitioner.

In a congressional hearing regarding the reauthorization
of the IDEA in 1994, the National School Board Association
‘urged Congress to amend the IDEA to expressly provide
that “[iJn cases where parents are seeking to place their
child in‘a private school, the school needs to be given
adequate advance notice of the services the parents
desire.” Hearing on the Reauthorization of the Individuals
with Disabilities Education Act: Before the Subcomm. on
Select Educ. & Civil Rights of the House Comm. on Educ.
and Labor, 103d Cong., at 43 (1994). It explained that
requiring advance notice “is cost efficient and still fully
protects the rights of students with disabilities.” [bid.

The following year, the General Counsel of the Orange
County Department of Education explained to Congress
that his office had been working with various national and
state education organizations to provide recommendations
for changes in the IDEA. He stated that the proposal that
had been developed “[w]ith regard to unilateral placement
of students in private facilities” was that parents would be
required “to notify school districts before placing their
child in a private school that they intend to seek tuition
reimbursement from the school district.” Hearings on
the Individuals with Disabilities Education Act: Before
the Subcomm. on Early Childhood, Youth & Families
of the House Comm. on Economic and Educational
Opportunities, 104th Cong., at 279 (1995); see also id. at 290
(California School Boards Association urges provision
requiring parents “to provide ample notice and opportunity
for the districts to provide appropriate services through
their own public means” before “unilateral placement of
students in non-public schools by parents”); Hearing
on Early Childhood, Youth & Families Staff Draft of the
IDEA Improvement Act: Before the Subcomm. on Early
Childhood, Youth & Families of the House Comm. on

28

Economic and Educational Opportunities, 104th Cong.,
at 10 (1996) (California school district urges that
reimbursement be denied unless there is notice and “the
parents or guardian have cooperated in good faith with the
local education agency to develop an _ individualized
education program for the child or youth prior to seeking
the non-public service or placement”).

When a predecessor to Section 1412(a)(10\C)
appeared in a version of the bill reported out of the House
Committee on Economic and Education Opportunities in
1996, the committee stated that school districts were
sometimes “confronted with the very rare situation where
parents place a child in private school without notifying
the school district” and that the proposed bill “would
require such parents to notify, at a minimum, a local
education agency of their concerns, and provide the
opportunity for the school to evaluate the child and
determine if it can meet that child’s needs.” H.R. Rep. No.
104-614, at 12 (1996). That committee bill passed in the
House but no action was taken in the Senate.

The key point is that the intent of the amendments
was to evaluate the child and develop and implement an
IEP that “meet{s] that child’s needs.” Jbid. If the school
district could not meet those needs, it would be
inconsistent with the IDEA and bad for the child to be
placed on an inappropriate educational program.

In hearings the following year, some witnesses
supported what they described as the “written notification”
language of what would become Section 1412(a)(10\(C). See
Hearings on H.R. 5, The IDEA Improvement Act of 1997:
Before the Subcomm. on Early Childhood, Youth & Families
of the House Comm. on Educ. & the Workforce, 105th
Cong., at 12 (1997) (Los Angeles County Office of
Education); id. at 80-81 (California Special Education
Local Plan Area). A few witnesses urged that Congress
eliminate any reimbursement remedy for a unilateral
placement in private school. See Reauthorization of the
Individuals with Disabilities Education Act: Before the
Senate Comm. on Labor & Human Resources, 105th Cong.,

29

at 31 (1997) (Chairman of Bedford School Board); id. at
106 (Council for Exceptional Children). But there was
no suggestion that Congress should eliminate the
reimbursement remedy for one category of students (i.e.,
those who did not previously receive special education and
related services under the authority of a public agency)
while permitting it for others.

Thus, it is the “notice” concept that is reflected in the
Senate and House Committee reports in 1997, both of
which describe the provision as providing that if “the
parents do not comply with the notice [requirement of the
bill] and evaluation requests [of the public agency] or
engage in unreasonable actions, hearing officers and
courts may reduce or deny reimbursement to parents for
unilateral private placements.” S. Rep. No. 105-17, at 12
(1997); H.R. Rep. No. 105-95, at 92 (1997).

At the same time, Congress enacted other provisions
to deter and sanction frivolous claims by parents and to
encourage reasonable settlements. See 20 U.S.C.
§§ 1415(i3)(D) & (F), (i3XB)G)ID) & (IID). These generally
applicable provisions further the interests identified by
petitioner and its amici without absolutely depriving a
class of children with disabilities the equitable remedy
that this Court has twice recognized as essential to the
purposes of the IDEA.

30

CONCLUSION

For the reasons set forth above and in respondent’s
brief, the judgment of the court of appeals should be
affirmed.

Respectfully submitted,

BETH S. BRINKMANN
SETH M. GALANTER

Counsel of Record
LINDA A. ARNSBARGER
MORRISON & FOERSTER LLP
2000 Pennsylvania Ave., NW
Washington, DC 20006
(202) 887-1500

CARL H. LOEWENSON JR.
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, NY 10104

Counsel for Amici Curiae
JULY 18, 2006

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0505%3A14. Public record. Not legal advice.