School System Must Pay Private School Costs of Learning Disabled Child

In Board of Education v. Tom F. (No. 06-637) the U.S. Supreme Court has let stand a Court of Appeals ruling that the New York City school system must pay the private school tuition of a child with learning disabilities who did not first try the public school system. The ruling has no effect outside of New York, Connecticut and Vermont, but it seems likely that the Supreme Court will soon hear a similar case that could have nationwide impact.

New York City resident Tom Freston enrolled his son, Gilbert, in a private school, which diagnosed Gilbert as having learning disabilities when he was eight. Believing that the special education program offered by the city's public school system was inadequate, Mr. Freston sought reimbursement from the system for Gilbert's private education under the Individuals With Disabilities Education Act (IDEA).

The United States Court of Appeals for the Second Circuit ruled in 2006 that tuition reimbursement is available to parents of privately enrolled students under the IDEA. New York City had maintained that the law requires parents to enroll their children in a public school program before transferring to private school and seeking reimbursement.

On October 10, 2007, the U.S. Supreme Court deadlocked 4-4 on the case, meaning that the lower court's ruling stands. One of the high court's nine justices, Justice Anthony M. Kennedy, recused himself from hearing the case for reasons that are not known.

It seems likely that the Supreme Court will consider the issue again, as at least one other circuit court has come to a conclusion opposite from that of the Second Circuit, and that ruling does not have any effect on courts elsewhere in the country.

Interestingly, Mr. Freston was not in need of the tuition reimbursement. He is a former executive of the cable TV giant Viacom, whose board ousted him in September 2006 and agreed to pay him a $85 million severance package over three years. However, the New York Times reported that Mr. Freston 'has said [that] he brought the case on principle and has donated his tuition reimbursement to tutoring for public school children.'

To read the New York Times article on the case, click here.

For an ABA Journal article on the case, click here.

To read case's procedural history: click here, and here.