Note: The facts cited in this article are from the Amicus Brief filed by the Solicitor General of the United States.

This case arises out of a complaint filed under the Individuals with Disabilities Education Act by Tom F., the father of Gilbert F., a child with a disability, against the New York Board of Education. The father argues that his son was denied a free appropriate public education and seeks reimbursement for Gilbert's tuition at the Stephen Gaynor School, a private school that educates children with learning disabilities.

Do All Children with Disabilities Have a Right to a Free Appropriate Public Education?

One issue that sets this case apart from other tuition reimbursement cases is the fact that Gilbert F. did not attend a public school special education program. The Supreme Court's decision will answer this questsion: Do all children with disabilities—regardless of whether they attend public or private school—have the right to a free appropriate public education (FAPE)?

Kindergarten through 2nd Grade (1995-1998)

In the fall of 1995, Tom F. enrolled his son Gilbert in kindergarten at the Stephen Gaynor School, a private school that specializes in educating children with learning disabilities.

In 1996, Tom requested that the school district evaluate his son and provide him with an IEP. The school district evaluated Gilbert and classified him as learning disabled. The school district paid Gilbert’s tuition at the private special education school for the 1997-1998 and 1998-1999 school years.

IEP Team Changes Placement (1999)

On May 28, 1999, the district scheduled a meeting to review Gilbert’s IEP and recommend an appropriate program and placement for the 1999-2000 school year. Because one parent was unable to attend the IEP meeting on that date, the IEP meeting was rescheduled to June 23, 1999. However, no one from Gilbert's school was able to attend the rescheduled meeting, including his special education teacher.

On July 29, 1999, approximately one month before the beginning of the school year, the school district mailed Tom F. a notice advising him that the school recommended that Gilbert be placed in a special education classroom in the New York City Lower Lab School for Gifted Education for the 1999-2000 school year.

Gilbert's father disagreed with the proposed program and placement and continued to send his son to the Gaynor School.

Due Process Hearing & Review

Tom F. requested a due process hearing to challenge the district's recommendation to change his child's placement and to request reimbursement for Gilbert's tuition at the private special education school for the 1999-2000 school year.

On April 6, 2001, the impartial hearing officer issued a decision. The hearing officer found that the school district failed to offer Gilbert an educational program that met his needs, that the Gaynor School was appropriate, and granted the parent's request for tuition reimbursement. The hearing officer found that Tom F. “did everything asked of him . . . in regard to this matter.”

The school district appealed. The state review officer affirmed the hearing officer's findings, found that the parent was entitled to tuition reimbursement, and dismissed the school district's appeal.

District Court Overturns Decisions by Hearing Officer & Review Officer (2005)

The school district appealed this decision to the U.S. District Court for the Southern District of New York. On January 3, 2005, the district court overturned the decisions of the impartial hearing officer and review officer. Citing Section 1412(a)(10)(C)(ii) of IDEA 97, the 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.”

The relevant statute reads:

(ii) Reimbursement for Private School Placement. If the 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 a private elementary or secondary school without the consent or or referral by the public agency, a court of 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." 20 U.S.C. 1412(a)(10)(C)(ii) (page 74 in Wrightslaw, Special Education Law, 2nd Edition)

The court did not consider the finding by the impartial hearing officer and review officer that Gilbert was denied a free appropriate public education.

Court of Appeals Vacates District Court Decision (2006)

On August 9, 2006, in an unpublished Summary Order, the U.S. Court of Appeals for the Second Circuit vacated and remanded the district court’s decision in light of their decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir.).

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 tuition reimbursement for a private school.

In Frank G., the Court of Appeals explained that Section 1412(a)(10)(C)(ii) “does not say that tuition reimbursement is only available to parents whose child had previously received 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.”

The court 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, 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.”

Supreme Court Grants Certiorari (2007)

On Monday, February 26, 2007, the U.S. Supreme Court granted certiorari in New York City Board of Education v. Tom F., on Behalf of Gilbert F., a Minor Child.

Question Presented

Does the holding of the United States Court of Appeals for the Second Circuit,
stating that the Individuals with Disabilities Education Act permits tuition
reimbursement where a child has not previously received special education from a
public agency, stand in direct contradiction to the plain language of 20 U.S.C. Sec.
1412(a)(10)(C)(ii) which authorizes tuition reimbursement to the parents of a
disabled child who previously received special education and related services
under the authority of a public agency?

Oral Argument

Oral argument scheduled for Monday, October 1, 2007, the first day of the Fall term. Learn more about the case, legal issues, significance, read briefs, and news.

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Revised: 08/12/07
Created: 08/12/07