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Forest Grove v. T.A.: A Summary *
The series of cases involving Forest Grove v. T.A. did not in and of themselves result in any earth-shaking legal decisions that will significantly alter our understanding of spedlaw for time immemorial, although at least one important new principle was added and several other key principles were reinforced. However, an understanding of the case may nevertheless be instructive. (Readers looking for a detailed legal analysis will find a number of alternative resources available for free on the Internet. )
What distinguished Forest Grove v. T.A. from any of the other hundred or so special education cases that reach the courts every year from our perspective was the tenacity of the litigants. Contemporaneous newspaper reports, when the appeals finally came to an end, estimated that the parents alone had spent nearly one hundred thousand dollars in private school tuition costs and five hundred thousand dollars in legal costs. The case began, as all such cases do, as a due process lawsuit in 2002. It finally ended, not with a bang, but with a whimper, in 2012.
So how did it begin? As in most special education litigation, the parents were asking fairly simple questions to which they ultimately received very expensive answers. In this case, they wanted to know whether their child had a disability under 504 or the IDEA as they believed, and, if he did, whether they were entitled to tuition reimbursement because the school had failed to properly identify or serve him.
At the time of the initial litigation, T.A. was 18 years old, and he had only that year been diagnosed by a private diagnostician as having ADHD.
The student’s problems in school, however, dated back several years earlier, when he began to struggle academically, which resulted in his being referred in December 2000 for a psycho-educational evaluation. This is where it started to get a little odd. The school psychologist later testified that he evaluated him for a specific learning disability even though there was nothing in the referral to suggest he had a learning disability because that was usually “the default” reason why children were referred. Although the referral did suggest that the child had attentional problems, the school psychologist determined unilaterally not to evaluate him for ADHD because the reported behaviors in his opinion were not sufficient to constitute ADHD. There’s an old saying that begins “For want of a nail, a shoe was lost, for want of a shoe, a horse was lost . . .” That decision was the missing nail that set the subsequent events in motion. To evaluate or not to evaluate; those are decisions to be made by IEP team with parent participation, not by individual service providers. Or as we often say, “The buck never stops here.” Or at least in the best of all possible worlds, it shouldn’t.
The parents had initially contended their child had a specific learning disability, but at the hearing amended the claim alleging he was actually Other Health Impaired.
Mr. and Ms. A. initially claimed that T.A. had a specific learning disability in the area of math but they later withdrew that contention. At the hearing they took the position that T.A. should be considered a child with a disability under the IDEA due to an OHI resulting from his ADHD, or due to an emotional disturbance (ED).
Although the hearing officer found the private evaluations “very comprehensive,” he also determined that the district was not liable for the cost of the second evaluation. He did award them the cost of the first evaluation.
However, the Administrative Hearing Officer also concluded that the school had failed to provide the student with a comprehensive evaluation because it had failed to determine his eligibility under the category of Other Health Impaired as ADHD. According to the Administrative Hearing Officer, the school psychologist had concluded in his report that the child did not have a specific learning disability but that he might be eligible under 504. The authority to determine eligibility under the IDEA is only given to the Eligibility Group (initial ) or IEP team (reeval.) Even in California (and this case originated out of Oregon), which requires school psychologists to offer an opinion as to whether or not a child MAY qualify, the final decision remains with the eligibility group or IEP team. Regardless, no one followed up on the 504 suggestion and no special educational or related services were offered for T.A. after the eligibility meeting in 2001.
The gist of the parents’ argument was that the school system had failed to provide the student with a comprehensive evaluation because it failed to evaluate him for ADHD; that as a result it had failed to provide the student with FAPE; and that therefore the school system was obliged to reimburse them for the educational services they, the parents, did provide because they WERE appropriate. Seemingly just another tuition reimbursement case (of which there are many). At the recommendation of their private psychologist, the parents had enrolled the young man in a very expensive private school and that enrollment was precipitated they wrote in the application at least in part by “inappropriate behavior, depression, opposition, drug use, runaway.”
The Administrative Hearing Officer Decision *
Those reasons, buried in a 54 page opinion from the Administrative Hearing Officer (see below) came back to haunt them in subsequent litigation. Nevertheless, at the hearing level, the decision was for the parents. The Hearing Officer’s decision included giving them reimbursement for tuition, and most of the other fees.
The Hearing Officer declared the student eligible under both the IDEA and Section 504. Parents who prevail as the result of an administrative hearing or court decision would also be entitled to reimbursement of legal fees.
Administrative Hearing Officer Decision, 2/26/2003
The case could have been settled at this level, but rather than pay the boy’s tuition and the parents’ attorney, the district chose to appeal. According to a newspaper report, its own legal costs were in excess of two hundred thousand dollars by April, 2011. Regardless, in 2003, It did not identify the child, did not offer an IEP, and once again chose not to offer him with 504 services.
At the district court level, the school system argued, among other things, that it could not be held liable for tuition reimbursement because the language of the IDEA said that reimbursement could only be obtained if the district’s special education program failed to provide a free appropriate public education. Since they had never provided the boy with a special educational program, then there could be no finding that he had not received FAPE from that program. Putting it another way, the school seemed to be arguing that before seeking tuition reimbursement under the law, parents should be required to at least give the school’s IEP a try, even if only for a very short time. Except of course in this case, no IEP or even a 504 Plan was ever offered.
If you file a question with OSEP, it is not uncommon for at least a year to pass before a response is received. The courts act with the same breathtaking lack of swiftness. The school’s appeal was not heard by the federal district court until March, 2005.
Judge Mosman in the District Court accepted all of the Hearing Officer’s findings of fact in 2003. However, the judge reversed his conclusions, agreeing with the school system’s position that the IDEA barred the parents from getting tuition reimbursement. The judge also concluded, however, that the facts of the case would not have supported “such an exercise in equity.”
District Court Decision (First Hearing)
Forest Grove v. T.A., May 11, 2005, District Court
Key Words: Tuition reimbursement, Other Health Impaired, IEE
Published? Yes
Decided for: The school system
This time it was the parents who appealed to the Ninth Circuit court. Their case was finally heard in April, 2008. The Ninth Circuit, in a 23 page decision, reversed the district court’s decision, and remanded the case back to the district court judge to consider the equities involved.
Ninth Circuit Decision (First Hearing)
Forest Grove v. T.A., Ninth Circuit, April 28, 2008
Key Words: Tuition reimbursement, FAPE
Published: Yes
Decided for: The parents
However, before it could be reheard by the district court judge, this time it was the school system that appealed, sending the case to the Supreme Court in Washington, D.C. That decision was handed down in June, 2009, about a year after the Ninth Circuit’s decision.
Expensive Answers to Simple Questions *
U.S. Supreme Court Decision
The school’s question: Do the parents have a right to sue us for compensation just because we didn’t do anything?
Supreme Court’s answer: Yes.
In their words, summarizing a 34 page opinion,
Held: IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the privateschool placement is appropriate, regardless of whether the child previously received special-education services through the public school.
This opinion from the Supreme Court established a nationwide principle of law, of course, but looking at the time, energy, and, most of all, money we believe this case illustrates several important practical principles. First, that sometimes it would be a whole lot more sensible for a school system to spend a little more than is required by law to help a child than a whole lot more on attorneys to prove it doesn’t have to. Second this decision also illustrated another cautionary note we have shared from time to time, which is that when a school system thinks it has found a legal loophole, as often as not it turns out to be a hangman’s noose. And third, though not fatal this time to the final outcome, before deciding NOT to evaluate a child for a condition suspected by the IEP team, the IEP team, not the school psychologist, should make that call.
Forest Grove v. T.A. Supreme Court Decision (Decided June 22, 2009)
Key Words: Right to sue, tuition reimbursement
Published: Yes
Decided for: The parents
The case once again was remanded back to the District Court judge. Since Judge Mosman had already stated back in 2005 that he didn’t think that the facts supported the parents in their search for equity, it may come as no surprise that he said the same thing when the case came before him
again. The judge did conclude that the school had been “uncooperative” during the evaluation process, and that this factor weighed in T.A.’s favor. However, he still found for the school system. There were a number of reasons cited, but it basically boiled down to what we quoted from the parents’ application presented in evidence in 2002. He said, paraphrasing, that it was apparent to him that the parents had not put the child in a very expensive private school because of educational concerns but because of behavioral concerns in the home.
Oregon District Court (Second Hearing)
Forest Grove v. T.A., December 8, 2009, Oregon District Court (8 pages)
Key Words: Tuition reimbursement
Published: Yes
Decided for: The school system
The parents contended that if he had only looked at page two of the application, he would have seen their educational concerns. And of course they appealed once again to the Ninth Circuit.
Ninth Circuit Decision (Second Hearing)
Forest Grove v. T.A. Ninth Circuit, April 2011
Key Words: Tuition reimbursement, FAPE
Published: Yes
Decided for: The school system
The case was heard by three Ninth Circuit judges, and the vote was two to one against the parents. Many parent advocates who read the dissent felt it was the more persuasive argument, but majority ruled. Which illustrates still another important fact of life in spedlaw litigation. Sometimes it’s not the law but who hears the arguments of law that decide the final outcome. In this instance, two of the judges apparently
As Peter Wright on Wrightslaw.com once wrote,
“Parents need to understand that to litigate is to roll the dice.”
Schools need to have the same understanding.
School officials get to play with public money; parents are betting the family farm *
Same law, same facts, but one different judge and a roll of the dice . . . very possibly a different outcome. The school system in this case won by a cat’s whisker, and while it cost them more than two hundred thousand dollars in the long run, it may have “saved” them six hundred thousand in tuition reimbursement and parent legal costs. You, dear reader, will have to decide: Remembering that in 2003 both parties’ legal costs were a fraction of what they were in 2012, was it worth the gamble?
Of course the parents once again appealed that decision to the United States Supreme Court.
“It began with a bang but ended with a whimper”
On January 12, 2012, Wendy Owen, a reporter for the Oregonia, wrote:
A nine-year lawsuit involving special education and the Forest Grove School District is finally over.
The U.S. Supreme Court declined Monday to hear an appeal from the family of a student with special needs who sought reimbursement for private school tuition after his parents enrolled him without informing the district.
The short term result of this decision was that it absolved the school system from having to pay the parents a hundred thousand dollars in tuition reimbursement and $500,000 in legal fees. However, the school system was responsible for paying its own legal fees, which were not inconsiderable. (By one estimate, at least $244,ooo)
Footnote: *
As a footnote, there has been some discussion in the professional literature over whether or not this case had precedential value in supporting the inclusion of neuropsychological testing of basic psychological processes in determining eligibility as having a specific learning disability. As the record above shows, the argument presented by the parents was that the school had failed to provide a comprehensive evaluation because it had not evaluated the student for ADHD. The eligibility determination ultimately being challenged was that the parents claimed he was OHI and the school’s position was that he had no disability. The parents lost. Although the courts could have determined that the child had not received FAPE because the school failed to provide him with a comprehensive evaluation including assessments for ADHD — it did not. (Eligibility as SLD, as noted above, or Emotionally Disabled, were not issues disputed by the parents.)
Despite the parent’s loss, the U.S. Supreme Court decision did and does have precedential value. The court’s ruling means that schools cannot avoid being sued for tuition reimbursement by simply failing to do anything, but a broader principle was also affirmed. The court also concluded that what relief was appropriate must be determined in light of the Act’s broad purpose (in this instance to provide children with disabilties FAPE.) Where an interpretation of a single phrase taken out of context would result in an outcome antithetical to the Act’s broad purpose, the courts may base their interpretation of the law based upon that broad purpose. Putting it another way, “Congress does not hide elephants in mouse holes.” (Also See G.L. v. Ligonier Valley School District, Third Circuit, September 22, 2015 )
References (Also see hearing and case links above):
Wright, et. al, Forest Grove v. T.A. Rejoinder to Zirkel: An Attempt to Profit from Malfeasance?