Supreme Court decision on Forest Grove and Due Process Hearings

by Marcos Mendoza

On June 22, 2009, the U.S. Supreme Court handed down a decision in Forest Grove School District v. T.A. The Supreme Court ruled if a district in a special education case failed to provide a Free Appropriate Public Education (FAPE) and private school placement was appropriate for a child, the parents did not have to avail themselves of special education services offered by the district prior to the removal of the child. The case involved parents which, after informal discussions with the district failed, removed their child from a school district and enrolled him into a private academy. The school district found him ineligible for such services and declined to offer him an Individualized Education Program. The parents then requested a hearing on the child’s eligibility for special education services under the Individuals with Disabilities Education Act (IDEA). The hearing officer agreed with the parents, indicating the district had failed to provide a FAPE under the IDEA, and ordered the district to reimburse the parents the private school tuition. The district appealed, and one of the issues was whether parents could be awarded reimbursement if the parents never availed their child of any special education services with the district. The Supreme Court reasoned regardless of the reason, if the child did not receive a FAPE under the IDEA, then the parents should be reimbursed for appropriate private placement. This case does not appear to change existing law; it only clarifies factual circumstances under which the law applies. However, the Fund does anticipate some moderate increase in IDEA claim activity until the advocate bar has had a chance to examine this case more closely. Because of the complexity of the case, it is suggested districts contact their general counsel for questions regarding particular circumstances.