July 26, 2021

Volume XI, Number 207


July 26, 2021

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U.S. District Court: School System Failed to Provide Disabled Student with a ‘Free Appropriate Public Education’ Required by IDEA; Ordered to Directly Pay Student’s Private School Tuition

In a case of first impression, the court ruled that, under the Individuals with Disabilities Act (IDEA), a school district must directly pay a private school for a disabled student's tuition if the parents cannot afford to pay the tuition upfront

On February 1, 2011, the United States District Court for the Southern District of New York issued a decision on a question of first impression concerning whether Section 1415 of the Individuals with Disabilities Act (IDEA) authorizes courts to award direct tuition payment to a private school for the tuition of a child with disabilities when the parents have not paid the tuition, due to a lack of financial resources, yet are legally obligated to pay and when: (1) the child with disabilities has been denied a free appropriate public education by the school district; (2) the child’s parents unilaterally place the child in an appropriate private school; (3) the equities favor an award of the costs of the private school tuition.1

The Department of Education (DOE) and its chancellor took the position that private school tuition payment is only available to parents of a child with disabilities who have the financial means to pay the private school tuition out-of-pocket.2 The District Court disagreed and held that the statutory language of the IDEA and Supreme Court jurisprudence authorizes courts to award retroactive tuition payment to private schools in cases where the parents did not have the financial means to pay tuition out-of-pocket.3 To hold otherwise, the District Court stated, would be “antithetical to Congress’s clearly expressed legislative intent and purpose in enacting the IDEA.”4

“Congress enacted the IDEA to promote the education of children with disabilities, ‘to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs [and prepare them for further education, employment, and independent living, and] ... to ensure that the rights of children with disabilities and parents of such children are protected.’”5

In exchange for receipt of federal funds, New York has agreed, and is required, to guarantee a FAPE to every child with a disability.6 A school district provides such special education services through the development of an “individualized education program” (IEP) for each child with disabilities.7

An IEP must set forth, among other things:

  • the child’s present level of educational performance;
  • the annual goals for the child, including short-term instructional objectives;
  • the specific educational services to be provided to the child,
  • and objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.8

In order to meet the substantive requirements of the IDEA, the IEP must be reasonably calculated to enable the child to receive educational benefits, i.e., a FAPE, and a proposed school placement must be able to implement the IEP and enable the child to receive educational benefits.9

Parents who believe that their school district has failed to provide their child with a FAPE-due to an inadequate IEP or the offer of an inappropriate school placement may file a complaint with the state educational agency and request an impartial due process hearing before an impartial hearing officer (IHO).10 In New York, any party aggrieved with the decision of the IHO may appeal the IHO’s decision to the State Review Officer (SRO).11 Any party still aggrieved after the decision of the SRO may file a complaint in either state or federal court.12 It is well settled that parents who believe their child has been denied a FAPE “may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state.”13 Such tuition funding covers “‘expenses that [the school district] should have paid all along.’”14

In determining whether to award tuition payment as a remedy for a denial of FAPE, a court must find:

(1) the school district failed to provide a FAPE;

(2) the private school placement chosen by the parents is appropriate; and

(3) the equities warrant a tuition payment award, (the “Three Prong Burlington Test”). 15

The case before the District Court concerned a 14-year-old New York City student diagnosed with Asperger’s Syndrome, bipolar disorder and attention deficit hyperactivity (the Student”).16 In August of 2007, in anticipation of the 2007-2008 school year commencing in September, the DOE’s Committee on Special Education (CSE) convened a meeting with the Student’s parents and school district employees to develop an IEP for the Student.17 At the time, the Student was attending the Rebecca School, a private school for children with neurodevelopment disorders of relating and communicating, including children on the autism spectrum.18 The CSE noted that the Student suffered from significant delays in academic achievement, problems with social use of language, comprehension of written materials, the reading of social cues, and frustration management.19

The CSE recommended that the Student be educated in a 12-month program in a New York State Approved private school with a 6:1:1 student-to-teacher-to-paraprofessional ratio, counseling, occupational therapy and speech and language therapy.20 Although the school year was commencing in just one month, the CSE did not recommend an appropriate school for the Student at the meeting and deferred the placement decision to the Central Based Support Team (CBST), which approves funding for a student’s private school tuition and forwards the student’s file to potentially appropriate State Approved private schools.21 Three State Approved private schools contacted the Student’s parents about a potential placement.22 The parents’ visited two of the schools, but neither offered the Student a placement.23 The third school never returned the parents’ phone calls to arrange an interview.24

Because the DOE failed to offer any appropriate school placement to the Student as the school year commenced, the parents re-enrolled the Student in the Rebecca School.25 The parents signed an enrollment contract with the Rebecca School that obligated them to pay the school’s $84,900 per year tuition.26 Because of the parents limited financial resources, the parents could not afford to pay the tuition up front and intended to seek tuition payment from the DOE in an impartial hearing.27 They subsequently entered into a monthly payment plan with the Rebecca School and at the time of the hearing, the parents had made payments totaling $1,100 to the Rebecca School.28

In May of 2008, the parents requested that the DOE hold an impartial hearing, contending that the CSE had failed to provide the Student with a federally required FAPE in that it had not timely provided an appropriate placement recommendation for the 2007-2008 school year.29 After a hearing, the IHO found that the Three Prong Burlington Test had been met: the DOE failed to provide a FAPE in that it failed to offer the Student any school placement; the Rebecca School was an appropriate placement; and the equities favored awarding the parents the remedy sought.30 The IHO ordered the DOE to pay the Rebecca School tuition balance for the 2007-2008 school year.31 The DOE appealed to the SRO and after the parties briefed the appeal, the SRO agreed with the IHO that the Three Prong Burlington Test had been met.32 However, the SRO annulled the IHO’s award of tuition, asserting that the IDEA only authorizes the reimbursement to parents of out-of-pocket expenses for private school tuition.33 Thus, because the parents had not paid the Rebecca School tuition up front, they were not entitled to an award of direct tuition payment.34 The SRO’s decision, had it been upheld on appeal, would have closed the door on poor parents from availing themselves of the federally mandated remedies under the IDEA simply because they are unable to pay out-of-pocket for an appropriate private school when the DOE fails to provide their disabled child an appropriate education. The parents appealed the decision to the Southern District of New York.35 The parties cross-moved for summary judgment.36

The District Court held that the IHO and SRO properly determined that the Three Prong Burlington Test had been met.37 It then addressed whether the IDEA authorizes courts to award direct payment of private school tuition costs where a parent — due to lack of financial resources — has not incurred out-of-pocket expenses.38 Section 1415 of the IDEA authorizes courts to “grant such relief as the court deems appropriate.”39 The United States Supreme Court has held that this grant of authority includes the power of courts to order school districts to “reimburse parents for their expenditures on private school education” if the Three Prong Burlington Test is met.40 This holding was memorialized in part of amendments to the IDEA in 1997, which authorizes tuition reimbursement when a school district has “not made a free appropriate public education available to the child in a timely manner prior to [private school] enrollment.”41

The DOE argued that the relief sought by the parents, payment for private school tuition owed to the Rebecca School but not yet paid, was not explicitly authorized by section 1415 of the IDEA and that section 1412, authorizing only “reimbursement”, foreclosed granting tuition payment when the parents had not paid put-of-pocket for the private school.42 The District Court rejected these arguments. In considering whether direct payment of private school tuition is authorized under section 1415 when parents have not paid the tuition out-of-pocket, the District Court detailed numerous provisions of the IDEA that “demonstrate special Congressional solicitude for the educational needs of disabled children from low-income families,” including the fact that the IDEA was prompted by Congress’s recognition that “‘there is an urgent and substantial need… to enhance the capacity of State and local agencies and services providers to identify, evaluate, and meet the needs of all children [with disabilities], particularly minority, low-income, inner city, and rural children.’”43 The District Court concluded that

“[t]he theme of concern for children from low-income families that runs through IDEA and its legislative history counsels caution in adopting an interpretation of § 1415(i)(2)(C)(iii) that would limit a private school tuition remedy to those who have the means to pay the tuition in the first instance.”44

The District Court then turned to whether the remedy sought by the parents was available under section 1415. The District Court concluded that under Burlington, the Supreme Court, in dicta, suggested that the type of direct payment of tuition to a private school sought by the parents is available under section 1415.45 Moreover, three subsequent Supreme Court cases “repeatedly rejected invitations to restrict the scope of remedial authority provided” in section 1415.46 The District Court also noted that multiple Circuit court decisions have found that in the context of the pendency provision, the IDEA authorizes prospective direct tuition payments where the parents owed a private school tuition, and that in the Second Circuit, a number of District Courts have suggested in dicta that direct tuition payment is an available remedy under the IDEA where the parents lack the means to pay the private school tuition out-of-pocket.47

The District Court also rejected the DOE’s argument that section 1412 was intended to limit the remedies authorized under section 1415 because it refers only to “reimbursement” and not direct payment to a private school. Citing at 2009 Supreme Court case that squarely held that section 1412 does not limit section 1415, the District Court held that section 1412 was “‘best read as elucidative rather than exhaustive,’” thus did not in any way prohibit the award of direct tuition payment.48

For these reasons, the District Court granted the parents’ motion for summary judgment, concluding that where the Three Prong Burlington Test is satisfied, the Court’s broad discretion to grant relief as is appropriate under section 1415 “includes the power, in a proper case, to award retroactive direct payment of private school tuition.”49 The District Court concluded that:

“[a] contrary ruling would be entirely inconsistent with the IDEA’s statutory purpose, including the goal of ensuring a FAPE to the least privileged of disabled children in our nation…. Limiting ‘the right of unilateral withdrawal’ only to those with the financial means to pay the costs of private school tuition in the first instance is entirely antithetical to IDEA’s universal guarantee of a [FAPE] to all children with disabilities, regardless of means.”50


1 Mr. & Mrs. A, on behalf of D.A. v. New York City Department of Education and Joel Klein, No. 09 Civ. 5097 (PGG), 2011 WL 321137 (S.D.N.Y. Feb 1, 2011).

2 Id. at *1.

3 Id. at *1. In addition to considering the memoranda of law submitted by the parties, the District Court also considered memoranda of law submitted amicus curiae by the New York Lawyers for the Public Interest, Partnership for Children's Rights, Advocates for Children of New York, Inc., New York Legal Assistance Group, Legal Services NYC-Bronx, Queens Legal Services, South Brooklyn Legal Services, and The Legal Aid Society. Id. at *1.

4 Id. at *1.

5 Frank G. v. Bd. of Educ. of Hyde Park, 459 F .3d 356, 363 (2d Cir. 2006) (quoting 20 U.S.C. § 1400(d)(1)(A), (B) and citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 367 (1985)) (emphasis added.)

6 20 U.S.C. § 1412(a)(1)(A).

7 20 U.S.C. § 1414(d).

8 Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir.1998)

9 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 187-88, 203 (1982)

10 20 U.S.C. § 1415(b)(1)(E); N.Y. Educ. Law § 4404(1).

11 N.Y. Educ. Law § 4404(2).

12 20 U.S.C. § 1415(e)(2))

13 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (2d Cir. 2007) (citing Burlington, 471 U.S. at 370).

14 T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam ) (quoting Burlington, 471 U.S. at 370-71).

15 Forest Grove School Dist. v. T.A., 129 S.Ct. 2484, 2496 (2009); see also Frank G., 459 F.3d at 363-64.

16 Mr. & Mrs. A., 2011 WL 321137 at *3.

17 Id.

18 Id.

19 Id.

20 Id. at *4.

21 Id.

22 Id. at *4-*5.

23 Id. at *5.

24 Id.

25 Id.

26 Id.

27 Id.

28 Id.

29 Id. at *3.

30 Id. at *7.

31 Id. at *8.

32 Id.

33 Id.

34 Id.

35 Id. at *1. The parents were represented in the District Court by Caroline J. Heller of Greenberg Traurig, LLP and Michele Kule-Korgood and Tamara Roff of the Offices of Michele Kule-Korgood.

36 Id.

37 Id. at *9-*14.

38 Id. at *14.

39 20 U.S.C. § 1415(i)(2)(C)(iii).

40 Burlington, 471 U.S. at 369.

41 20 U.S.C. § 1412(a)(10)(C)(ii).

42 Mr. & Mrs. A, 2011 WL 321137 at *23-*24.

43 Id. at *15-*16 (20 U.S.C. § 1431(a)(5)).

44 Id. at *16.

45 Id. at *16-*17.

46 Id. at *17-*18.

47 Id. at *19-*21.

48 Id. at *18 (quoting Forest Grove v. T.A., 129 S. Ct. at 2493).

49 Id. at *21.

50 Id. at *22.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume I, Number 67

About this Author

Caroline Heller, Greenberg Traurig Law Firm, New York, Litigation Attorney

Caroline J. Heller is an atttorney in the Litigation Practice of the firm's New York office. She is also Chair of Greenberg Traurig’s Global Pro Bono program. Caroline focuses her practice on complex commercial litigation and business disputes on a nationwide basis in the fields of professional liability, partnership disputes, securities litigation and entertainment disputes. She has litigation experience in federal and state courts and arbitration experience before the American Arbitration...