Supreme Court Takes Up Special Ed Case

A lawyer for an Oregon high school student told the Supreme Court on Tuesday that the public education system failed to address his learning problems and then improperly denied his parents reimbursement after they enrolled him in a private school.

A lawyer for the school system argued that the student's parents should have given public special education programs a chance before seeking reimbursement for private school tuition.

"All parents have to do is give (public education programs) a try," said Gary Feinerman, an attorney representing the Forest Grove, Ore., School District.

The Supreme Court is again trying to decide when taxpayers must foot the bill for private schooling for special education students.

In the Oregon case, the family of a teenage boy diagnosed with attention deficit hyperactivity disorder (ADHD) sued the school district, saying the school did not properly address the student's learning problems. The family is seeking reimbursement for the student's tuition, which cost $5,200-a-month.

Federal law calls for school districts to reimburse students or their families for education costs when public schools do not have services that address or fulfill the students' needs. Under the Individuals with Disabilities Education Act, the nation's special education students are entitled to a "free and appropriate public education."

In its appeal to the Supreme Court, the school district said students should at least give public special education programs a try before seeking reimbursement for private tuition.

Chief Justice John Roberts seemed sympathetic to that point, noting that in many cases a tryout period can be as short as 10 days.

"What's wrong with 10 days?" Roberts asked.

David Salmons, a lawyer for the student - who was identified only as T.A. - said that specialized learning plans for students typically are developed at the end of a school year and are to be used at the beginning of the next year. Such a practice makes a 10-day tryout impractical.

Justice David Souter said he was concerned that legal appeals in similar cases could drag out for years while a student's education languishes.

"You get into court and it can go on a long time," Souter said. "You can't wait years" when a student's education is at stake.

Justice John Paul Stevens told Feinerman, the school district's lawyer, that his interpretation of the law could give public schools an incentive to deny special education services for students it deems don't need them.

Justice Anthony Kennedy appeared to agree, telling Feinerman that his position in the case seemed "formalistic" and "promotes intransigence."

Kennedy's position on the case is considered crucial, since the high court split 4-4 on a similar case two years ago. Kennedy recused himself in that case, but was among those considering the Oregon case on Tuesday.

The case is Forest Grove School District v. T.A., 08-305.

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