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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.
JES
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