Bd. Of Educ. v. Tom F., ___ U.S. ___ (2007)

U.S. Supreme Court

October 10, 2007

On October 10, 2007, the Supreme Court affirmed, without opinion, a Second Circuit court of appeals decision upholding the proposition that parents need not “try out” a school district’s placement for an identified child if the placement is not appropriate for the child. In Bd. of Educ. vs. Tom F., the federal district court held that because the child never attended public school, the parents were not entitled to tuition reimbursement for the private schooling the child had attended since kindergarten. The Second Circuit court of appeals reversed and remanded the case to the district court to consider whether the special education program offered by the school was appropriate, whether or not the parents “tried out” the program in the public school, rather than unilaterally removing their child and sending him to private school. The second circuit court’s decision set up the Supreme Court’s ruling (a 4-4 tie) – effectively affirming the circuit’s opinion.

The Second Circuit panel based its finding (in a very short decision) on the case of Frank G. v. Bd. of Educ., 459 F.3d 356 (2d. Cir. 2006). In Frank G., the court set forth a groundbreaking decision (applicable only to the second circuit – but with significant national ramifications) that held that a disabled student’s unilateral private school placement was appropriate, and that the Individuals with Disabilities Education act (IDEA), did not preclude reimbursement when the student had not previously received special education and related services in the school district. Despite the fact that the case arose in New York State, the second circuit’s holding is binding in Connecticut – and advocates should utilize the principle that unilateral placements are not per se inappropriate if the parents have not enrolled the student in the public school system prior to placing the child in the private school setting.

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