To test the validity of these impressionistic accounts, 416 decisions--con-
sisting of virtually all published court decisions and administrative rulings
concerning parental claims under IDEA for reimbursement of private
tuition and/or comparable related expenses such as tutoring, counseling,
physical therapy, or transportation--were analyzed.
In the past two decades, the number of court decisions concerning spe-
cial education has increased, even though the overall level of litigation
against school districts dropped during the same period.8 Here, only those
special education cases involving parental demands for reimbursement of
privately obtained services are discussed. These cases are based upon Public
Law 94-142, now called the Individuals with Disabilities Education Act
(IDEA). In some cases, parents additionally or alternatively asserted claims
under either Section 504 of the Rehabilitation Act or the Americans with
Disabilities Act (ADA).
Results of this analysis indicate that news reports of Carter's causing
"hemorrhaging" of public money to pay private tuition for students with dis-
abilities are exaggerated. The number of published cases dealing with
parental demands for privately obtained services has increased steadily and
now approaches 50 opinions per year. However, the percentage of rulings in
favor of the parents has not changed significantly since the 1975 inception
of federal laws protecting the educational rights of students with disabilities.
administrative review, and finally through the
Parental Rights Under IDEA federal or state courts. During the appeal
In 1975, Congress passed the IDEA (at process, the child is supposed to "stay put" in
that time called the Education for All his or her existing placement. In 1986, the
Handicapped Children Act). The 1975 law IDEA was amended to authorize courts, at
was based upon federal court rulings that their discretion, to award reasonable attor-
the Constitution required equal educa- neys' fees for parents who prevail on appeal.9
tional opportunity for school-age children
with disabilities. Supreme Court Cases
What if the parents, during an appeal over
Under the IDEA, a team, which includes the appropriateness of an IEP, unilaterally
the child's teacher and parent, develops an remove their child from the public school
individualized education program (IEP) for in favor of a private school of their own
the child. In the majority of cases, the parents choice? Can the school district be held
and other team members agree upon the ser- responsible for paying the private school
vices to be provided under the IEP. However, tuition retroactively?
where the parents and the school cannot
reach agreement, aggrieved parties may In the early cases, the hearing officers
appeal to an impartial hearing officer, then and courts were split in their rationales and
(in about half the states) to a second-tier results. Then, in 1985 the Supreme Court
124 THE FUTURE OF CHILDREN WINTER 1997
issued the Burlington decision which estab- whether the IEP offered by the school was
lished that parents are entitled to retroactive appropriate.11 An appropriate education
reimbursement for private school tuition requires procedural compliance and an IEP
where (1) the school district's proposed reasonably calculated to provide meaning-
placement is inappropriate and (2) the par- ful benefit. For example, in denying a
ent's placement is appropriate. Even where parental request for tuition reimbursement,
these two conditions are met, the court's the Sixth Circuit Court of Appeals com-
decision to award full, partial, or no reim- mented: "The Act requires that the [school
bursement to the parents depends on the district] provide the educational equivalent
equities of the particular case, such as of a serviceable Chevrolet to every handi-
whether the school district or parent capped student. [The parent], however,
engaged in bad faith.3 demands that the . . . school system pro-
vide a Cadillac solely for [their child's] use.
In 1993, the Supreme Court in Carter We suspect that the Chevrolet offered to
addressed a narrower question: What if the [him] is in fact a much nicer model than
parents prevail on appeal, but the parents' that offered to the average [district] stu-
chosen private school is not on the state's list dent. Be that as it may, we hold that the
of private schools approved to provide spe- Board is not required to provide a Cadillac
cial education services? The Court ruled that and that the IEP is reasonably calculated to
the lack of the state's stamp of approval does provide benefits to [the child]."12
not bar reimbursement if the private school
provides the child with an appropriate edu- Second, if the school's offer is found not
cation. However, a court has the option of appropriate, the hearing/review officer or
awarding less than total tuition reimburse- court then decides whether the private pro-
ment if the cost of the private school is gram in which the parents enrolled the stu-
found to be unreasonable.4,10 dent was appropriate. The fact that a pri-
vate program or package of services is
expensive will not deter the court from
The Impact of Burlington requiring appropriate services.13 For exam-
and Carter ple, in the most extreme cases, an appro-
Table 1 presents a compilation of virtually all priate education was held to require pri-
published court decisions and administra- vate tuition and/or related expenses such
tive rulings concerning reimbursement of as: (1) out-of-state travel (for example,
private school tuition and/or related Massachusetts to Arizona)14 or transporta-
expenses under the IDEA since 1978, when tion in the form of commuting expense,
the first published decisions appeared. including not only mileage allowance but
Rulings are grouped in three time periods: also baby-sitting;15 (2) a full-time aide;16 (3)
(1) from 1978 until the ruling in Burlington, lodging costs, including rent and utilities,
(2) between Burlington and Carter, and (3) at a second apartment;17 or (4) the expense
subsequent to Carter. A review of the data in of hospitalization,18 a rehabilitation cen-
Table 1 reveals that the average number of ter,19 or an intensive training program in
published decisions per year has increased the home.20 In one case, the parents, who
steadily. The table also reveals that the lived in Georgia, received partial reim-
Burlington and Carter cases have not made bursement for a unilateral placement first
courts more inclined to rule in favor of par- in Japan (for two years) and then in Boston
ents. The percentage of parent victories (for one year).21
(including both partial and total victories) at
the administrative level increased somewhat Finally, at the third step, it was not
in the wake of Burlington and decreased after uncommon for courts to dismiss parents'
Carter. However, these changes were not sta- reimbursement claims on technical or equi-
tistically significant. table grounds, such as the parents' failure to
exhaust administrative remedies or the par-
The review of cases highlighted the com- ents' refusal to allow their child to be reeval-
partmentalized results caused by the three- uated. Congress recently passed amend-
step process laid out by the Supreme Court ments to IDEA spelling out some of the
in Burlington and Carter. First, the hear- circumstances in which courts should
ing/review officer or court must determine reduce or deny reimbursements to parents.22
REVISITING THE ISSUES: Tuition Reimbursement for Special Education Students 125
Compilation of Court Decisions and Administrative Rulings
Concerning Reimbursement of Tuition and/or Related Expenses
Court Decisions Administrative Rulings Totals
P D P D P D
Pre-Burlington 19 22 2 3 21 25
x = 7.0 per year
Percentage of cases 46% 40% 46%
in which the parents
prevailed, at least
BurlingtonCarter 58 55 49 24 107 79
x = 25 per year
Percentage of cases 51% 67% 58%
in which the parents
prevailed, at least
Post-Carter 32 35 43 42 75 77
x = 47.9 per year
Percentage of cases 48% 51% 49%
in which the parents
prevailed, at least
P = Parent prevailed at least in part D = School district prevailed at least in part
x = Mean (or arithmetic average) of number of published decisions during this time period
Note: Cases were selected for review from the topical index for the Individuals with Disabilities Education
Law Report (IDELR), the digest for West's Education Law Reporter, and the Lexis computerized database.
The IDELR publishes the most extensive sample of court decisions and administrative rulings concerning spe-
cial education. The author read each case (a total of 416 cases) to categorize the type of expense (for
example, residential tuition, transportation, or tutoring), the prevailing party, and, where specified, the
financial amount awarded. The author omitted from the table only those cases that were inconclusive on
the question of responsibility for tuition or expenses (for example, court denied dismissal motion). In addition
to all published cases concerning private tuition, Table 1 includes cases where the parent sought reim-
bursement for comparable related expenses, such as tutoring, counseling, physical therapy, or transporta-
tion (but not for independent evaluations or attorneys' fees).
Source: Data compiled by author.
New Developments meant to protect students whose parents
One of the most recent decisions in the post- could not afford to pay private tuition dur-
Carter period, which has thus far largely ing a lengthy appeal, but it goes against a
escaped public attention, further compli- long judicial tradition of not imposing finan-
cates the question of who pays private school cial obligations while a case is under appeal.
tuition and when. In Susquenita School District
v. Raelee S. (1996),23 the U.S. Court of By going against common appellate prac-
Appeals for the Third Circuit ruled that the tice, Susquenita raises more questions than it
school district must begin paying the private settles. For example, does this ruling apply to
school tuition as soon as a state administra- decisions made at the hearing officer level?
tive decision or a judicial decision is made in Also, if the district prevails on the final
favor of the parent, even while the decision appeal, must the parents then reimburse the
is being appealed. This ruling is no doubt district for tuition paid?
126 THE FUTURE OF CHILDREN WINTER 1997
Conclusion lished opinions has risen steadily, the rul-
In sum, national news about the 1993 ings issued by the Supreme Court in
Carter case's causing "hemorrhaging" of Carter and Burlington have not made the
public funds to pay for private tuition is courts more likely to rule in favor of
exaggerated. While the number of pub- parents.
1. Staples, B. The end of special education? New York Times. October 7, 1996, at A16.
2. Skaruppa, C., Boyer, A., and Edwards, O. Tuition reimbursement for parents' unilateral place-
ment of students in private institutions: Justified or not? West's Education Law Reporter (1997)
3. Burlington School Committee v. Department of Education, 471 U.S. 359, 105 S. Ct. 1996 (1985).
4. Florence County School District Four v. Carter, 510 U.S. 7, 114 S. Ct. 361 (1993).
5. Belluck, P. Public pays for the learning-disabled to attend private schools. New York Times.
October 27, 1996, at L35.
6. Bad boy protection act. Reader's Digest (May 1996) 148,889:90.
7. Gubernick, L., and Conlin, M. The special education scandal. Forbes (1997) 159,3:6670.
8. Zirkel, P.A. The explosion in education litigation. West's Education Law Reporter (1996)
9. See 20 U.S.C. 1415(e)(4) (1990).
10. Zirkel, P.A. A somewhat ironic decision. Phi Delta Kappan (February 1994) 75,6:49799.
11. Appropriateness must be based upon the needs of the individual child. Board of Education v.
Rowley, 458 U.S. 176 (1982).
12. Doe v. Board of Education, 9 F.3d 455, 45960 (6th Cir. 1993), cert. denied, 114 S. Ct. 2104
13. In fact, in well over 90% of the cases, the published opinion does not even mention the dol-
lar amount sought or obtained by the parents. To the extent such amounts are detectable in
the decisions, tuitions at day programs appear to be in the neighborhood of $10,000 to
$20,000, and those at residential programs tend to be in the range of $40,000 to $80,000. In
comparison, for 1993, the year of the Carter decision, the national average per-pupil expendi-
ture in public schools was approximately $5,500.
14. East Longmeadow Public Schools, 16 IDELR 395 (Mass. SEA 1989).
15. Taylor v. Board of Education, 649 F. Supp. 1253 (N.D.N.Y. 1986).
16. Thornock v. Boise Independent School District #1, 767 P.2d 1241 (Idaho 1988).
17. Union School District v. Smith, 15 F.3d 1519 (9th Cir. 1994), cert. denied, 115 S. Ct. 428 (1994).
18. Babb v. Knox County School System, 965 F.2d 104 (6th Cir. 1992), cert. denied, 113 S. Ct. 380
19. Mrs. B. v. Milford School District, 25 IDELR 217 (2d Cir. 1997).
20. Delaware County Intermediate Unit No. 25 v. Martin, 831 F. Supp. 1206 (E.D. Pa. 1993).
21. Drew P. v. Clarke County School District, 877 F.2d 927 (11th Cir. 1989), cert. denied, 494 U.S.
22. See 20 U.S.C. 1412(a)(10)(C) (1997).
23. Susquenita School District v. Raelee S., 96 F.3d 78 (3d Cir. 1996).
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