Forest Grove School District v. T.A. – Oral Argument – April 28, 2009

Media for Forest Grove School District v. T.A.

Audio Transcription for Opinion Announcement – June 22, 2009 in Forest Grove School District v. T.A.

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John G. Roberts, Jr.:

This morning we will first hear argument in Case 08-305, Forest Grove School District v. T.A..

Mr. Feinerman.

Gary S. Feinerman:

Thank you, Mr. Chief Justice, and may it please the Court: The 1997 amendments to IDEA prohibit tuition reimbursement awards for students who are unilaterally placed in private school without first having received special education services from the public school district.

This is so under ordinary principles of statutory construction and particularly so under the Spending Clause clear notice rule.

Prior to 1997, IDEA did not expressly address tuition reimbursement for unilaterally placed students.

In 1997, Congress added section 1412(a)(10)(C).

In subsection (i), Congress provided that when the school district makes a free appropriate public education available, a FAPE, no reimbursement is allowed.

And then in subsections (ii) through (iv), Congress addressed situations where courts and hearing officers may award tuition reimbursement and said that reimbursement may be allowed where the school district does not make a FAPE available to a student who previously received special education services from the public district.

Congress said nothing–

Ruth Bader Ginsburg:

Mr. Feinerman, but the — the first provision that you read, sub (i), says that there will be no reimbursement if the agency has made a free appropriate public education available to the child and the parents elected to place the child in private school.

But that “if” — if the agency made a free appropriate public education — and here, as I understand it, the school district said that this child was ineligible for special education.

Gary S. Feinerman:

–That’s correct.

Ruth Bader Ginsburg:

So if the child was entitled to a free appropriate public education and didn’t get it, then under this sub (i), wouldn’t the parents be entitled to tuition reimbursement?

Gary S. Feinerman:

No.

Subsection (i) covers students who are provided a free appropriate public education.

Subsections (ii) through (iv) address the other category of students–

Ruth Bader Ginsburg:

Well, that’s your–

Gary S. Feinerman:

–those who are not–

Ruth Bader Ginsburg:

–That’s your construction.

But couldn’t this be read to say no reimbursement if — the word is “if” — the agency, not — so the implication is if the agency did not make a free appropriate public education available, then–

Gary S. Feinerman:

–That — that might be the implication if there weren’t subsection (C)(ii) through (C)(iv).

So it’s — it’s T.A.’s argument and the government’s argument that (C)(i) sets forth the general rule, but if that were the way that — that Congress meant the statute to operate, it wouldn’t have had any reason to put in (C)(ii) through (C)(iv) because we would already know from (C)(i) that tuition reimbursement was a possibility for students who did not receive — previously receive special education services from the public district.

Congress instead went on in (C)(ii) through (C)(iv) to address very specifically, in the context of a comprehensive statutory scheme, when tuition reimbursement would be available to students who did not previously receive.

And Congress specified, after essentially being invited to do so in Burlington, which of those students could get tuition reimbursement.

And the–

Antonin Scalia:

Of course, (ii) through (iv) don’t — don’t limit or contradict any explicit requirement of (i).

Gary S. Feinerman:

–Oh, no.

It–

Antonin Scalia:

(i) is only at most a negative implication, which — which one would not draw in light of (ii) through (iv), is what you’re saying.

Gary S. Feinerman:

–Yes, that’s exactly what I’m saying.

Gary S. Feinerman:

And — and they deal with different sets of students.

In (i), the school district has made a FAPE available; in (ii) through (iv), the school district has not made a FAPE available.

And no mention is made of when a FAPE is not made available to a student who had not previously received.

And under this Court’s decision in Arlington, because those students like T.A. who had not previously received, are not mentioned, yet Congress–

Ruth Bader Ginsburg:

–Then — then what happens in a case which I think is like this one, where the child doesn’t receive special education because the school has determined that the child is not eligible?

So the child isn’t getting public education, and in the parents’ view, confirmed by experts, the child is in need of special education, can’t get it from the public schools, because they declared the child ineligible.

What is such a parent to do?

Gary S. Feinerman:

–If — if it’s an incorrect determination by the school district, the problem is remedied rather quickly.

There are very tight time frames in IDEA–

Antonin Scalia:

Of course, the parents here didn’t — didn’t run off to a private school only after the school district had found that their child didn’t require any special education, did they?

Gary S. Feinerman:

–That’s correct.

Antonin Scalia:

They — they put him in a private school without even consulting the schools.

Gary S. Feinerman:

Right.

And then only after the fact went to the school district and asked for–

Antonin Scalia:

Saying by the way, we can get some money.

How much — how much money are you talking about imposing on the school district here?

Gary S. Feinerman:

–Well, it’s — the tuition is $5,200 a month.

Antonin Scalia:

A month?

Gary S. Feinerman:

Yes, and then there’s a $5,200 alumni services fee, a $1,500 interview fee.

But let’s–

David H. Souter:

Mr. Feinerman, can we go back to the time frame again?

I’ve just got a question of fact.

I should know this, but I don’t.

You said that if the — if the parents and the school district disagree, it can be remedied fairly quickly because there’s a fairly tight schedule set for the administrative procedure.

What I don’t remember, and my question is this: When the administrative steps have been exhausted, if there is still disagreement, is there any limit on the time in which the — the judicial appeal has to be resolved?

Gary S. Feinerman:

–No, there isn’t.

So–

David H. Souter:

Isn’t that the — isn’t that the kicker here?

In other words, I — I fully understand your — your textual argument.

I — I can see its soundness as a possibility that is open to us and, perhaps on the face of it, the most likely possibility, but there is a cost, and the cost, it seems to me, is that once you get into the — once you get into appeals, this thing can go on for years, and you can’t wait years when — when a kid is in this kind of condition.

Gary S. Feinerman:

–That’s correct, but there’s no need to wait years.

Let’s assume that parents actually went through the process appropriately, unlike T.A.’s parents–

Ruth Bader Ginsburg:

But if you can explain what the process is–

Gary S. Feinerman:

–Yes.

Ruth Bader Ginsburg:

–because Justice Scalia said the parents just went away.

The school at an earlier point said this child was ineligible for special education, isn’t that so?

I think–

Gary S. Feinerman:

That’s correct.

That was in 2001, and the district judge, at–

Ruth Bader Ginsburg:

–Yes.

Gary S. Feinerman:

–at page 39 of the petition to the — of the appendix to the petition, page 39 note 3, the district judge noted that the 2001 evaluation is an appropriate part of this case.

But for this — for the parents who try and get their student — get their student evaluated, the school district says,

“No. “

“The child is ineligible. “

and then the parents — at that point, the timing kicks in.

The parents can ask for a due process hearing the next day.

Under the time periods that were in place when T.A.’s case was going through–

Ruth Bader Ginsburg:

Is that hearing–

Gary S. Feinerman:

–the hearing officer–

Ruth Bader Ginsburg:

–Is that hearing on eligible or not, or is it on what the IEP should be?

Gary S. Feinerman:

–Well, it’s–

Ruth Bader Ginsburg:

When the school said not eligible, is there — is that question resolved first before we ever get to the IEP?

Gary S. Feinerman:

–I think, in a situation where the school district finds the child ineligible and there is an appeal, both the eligibility and the appropriate placement are decided in front of the hearing officer.

And there was a 45-day time period at the time T.A.’s case went through for the hearing officer to make a decision.

And then after that, it’s–

Ruth Bader Ginsburg:

Well, wouldn’t the school say, we — we have no obligation to get up an IEP until the question of eligibility is determined?

Gary S. Feinerman:

–I suppose if the school district were to get a stay of the hearing officer’s decision pending appeal to the district court.

But that’s not what happened here.

What happened here is that the hearing officer decided on June — January 26, 2004, that T.A. was eligible.

On February 19th, quicker than the 30 days allowed, Forest Grove School District proposed an IEP that could have started as soon as possible thereafter, as the regulations require.

Gary S. Feinerman:

So you are talking about a very tight — I understand the situation that you are hypothesizing, Justice Ginsburg, but we are talking about a very tight turnaround in T.A.’s case, 75 days, which is a matter of weeks, not a matter of years as was the case in Burlington.

David H. Souter:

What happens when we get to court?

Gary S. Feinerman:

Excuse me?

David H. Souter:

What happens when we get to court?

Isn’t that when it turns into a matter of years?

Gary S. Feinerman:

It turns into a matter of years, but in the interim this school district, Forest Grove School District, while it was litigating in the district court, Forest Grove School District offered an IEP, and at that point T.A.’s parents could have tried the IEP out, sent the child to receive services in the public school district–

Ruth Bader Ginsburg:

The IEP — they did the IEP after the hearing officer was finished?

Gary S. Feinerman:

–Yes.

Less than 4 weeks after the hearing officer was finished, Forest Grove offered an IEP, and that’s in the addendum to our reply brief.

David H. Souter:

Okay.

But I think we’ve got to assume that Congress has some concern for the parents who correctly say, this IEP is no good, it just can’t be done in the school system, and the kid needs a special school.

In that case, maybe — your answer may be that’s the exceptional case and it shouldn’t drive the — the inferences to be drawn about congressional intent.

But in that case, if the district and the parents are at good faith loggerheads it can go on for a long, long time, can’t it?

Gary S. Feinerman:

It can go on for a long, long time if the parents file for a due process hearing, and that it can–

David H. Souter:

No, but they get the due process hearing.

The ultimate result is that the school proposes an IEP; the parents, based on what their experts tell them, say that isn’t going to work, and the parents say the only way we can educate this kid without his falling behind more is to put him in a private school.

At that point, with assuming good faith here, it seems to me you get into court and it can go on for a long time, if we accept your — your analysis of the text.

Gary S. Feinerman:

–But all the parents have to do in that situation is to give the IEP a try and send their child to public school.

David H. Souter:

Yes, but doesn’t that get to the point of something pretty formalistic?

I mean, somebody in the brief said, given one day under the IEP and the — if you win, ultimately the check can be written.

That can’t be right.

Gary S. Feinerman:

I don’t think one day could be right.

The statute says — it — it expressly says “who previously received special” —

“special education service under the authority of a public agency. “

It doesn’t say how long it has to be.

Antonin Scalia:

Maybe — I’m sorry.

John G. Roberts, Jr.:

I remember, perhaps incorrectly, from the prior argument here that the period that they had to try out the school plan was ten days?

Gary S. Feinerman:

That — that’s a discretionary factor that courts and hearing officers can — it’s not a hard and fast rule.

John G. Roberts, Jr.:

Not a hard and fast rule.

Gary S. Feinerman:

But I think it’s probably good as a general benchmark.

John G. Roberts, Jr.:

So is that — is that a period that your client’s prepared to accept?

Gary S. Feinerman:

Yes, so long as — in the ordinary case, ten days would — it’s in the statute, so we have that textual indication.

And it will provide the school district a chance to provide services under the IEP.

And as this Court mentioned in a prior case, IEP’s — it’s not an exact science and when you look at it on a piece of paper it’s hard to know whether it’s going to work or not.

The way you find out whether it works is where the rubber hits the road and it could be that the parents look at IEP and say, you know what, I don’t think this is going to work.

But until you actually give it a chance to work — maybe the child goes in and — and works with the special education teacher or the instructional assistant and they really hit it off.

Samuel A. Alito, Jr.:

Do you think that’s realistic?

If the parents are convinced going in that this is an inappropriate IEP and they send the child to school for ten days under the IEP, at the end of the ten days they are going to say, oh, well, we’ve completely changed our mind, now we think this is a good plan?

Gary S. Feinerman:

It’s certainly plausible under certain circumstances.

It — it may not happen every time.

And it may not happen half the time.

Ruth Bader Ginsburg:

Isn’t it also plausible that the district will say, ten days is not a fair trial for this system, this is a child with severe learning disabilities and to give this IEP a fair chance we need ten months?

Gary S. Feinerman:

At that point those arguments can be made under (C)(iii) and (C)(iv) because at that point the child would no — the parents would no longer be categorically barred from seeking tuition reimbursement and those are arguments that you can make to the hearing officer.

David H. Souter:

But you are basically saying that the — that the only necessary delay in order to satisfy a condition for eligibility, if the parents otherwise prevail, is a ten-day delay.

That’s basically your answer?

Gary S. Feinerman:

I — I don’t think I’m saying that.

I’m saying–

David H. Souter:

Okay.

Antonin Scalia:

This school does not have to come up with an IEP.

It could tough it out and say, we’re going to rest on our belief that this child does not need any special education, right?

And unless the school proposes an IEP, the parent cannot come within subsection (2) by sending the kid to get the special services.

Gary S. Feinerman:

–I think that assumes that the school district is not going to abide by the order of the independent hearing officer.

And in this — in our case.

Anthony M. Kennedy:

What about before?

The whole point is that under the words of the statute as you interpret it, there is a condition predicate that has to be satisfied.

So, to say that — to answer by saying, well, that assumes they won’t obey the hearing officer, what about before the hearing even takes place?

Gary S. Feinerman:

Right.

Before the hearing takes place, there is 45 days, and then well, the hearing — there’s a request for a due process hearing, the hearing officer has 45 days, and then if the hearing officer says this child is eligible, district, you must propose an IEP, the district has 30 days after that.

Samuel A. Alito, Jr.:

Well, what happens in the case where–

Antonin Scalia:

Could the district appeal?

Antonin Scalia:

That’s the end of the road?

Can’t the district say the hearing officer is wrong?

Gary S. Feinerman:

Absolutely, the district can appeal.

Antonin Scalia:

And if it does, does it have to take any action in the interim.

Gary S. Feinerman:

I suppose it, yes, unless it gets a stay of the hearing officer’s ruling.

Antonin Scalia:

Which is–

Gary S. Feinerman:

But that didn’t happen here and I am not aware of any cases which it did happen.

In this case there are two tracks.

The hearing officer said: T.A. is eligible; prepare an IEP.

The district said: I disagree; I’m going to appeal to the district court.

But in t mean time, within less than 28 days, t district prepared an IEP and offered it to T.A. And at that point T.A. could have accepted the services, thus rendering him eligible for tuition reimbursement.

John Paul Stevens:

I still don’t understand your answer to Justice Scalia.

What if the school board just was adamant that he is not entitled to any special education?

It just maintained that position throughout the litigation?

Gary S. Feinerman:

I think the assumption is that the school district would not abide by a lawful order of a hearing officer.

John Paul Stevens:

Well, they got a stay and they wanted to appeal it.

And if they did what happens?

Gary S. Feinerman:

In that situation there would be no — and I’m not aware of that situation ever happening–

John Paul Stevens:

But they don’t have a risk under your view of the law as I understand it.

They could take that position and they would never be liable — never be liable.

Gary S. Feinerman:

–There would be a delay in that situation, but I’m not aware of any case where that situation — where a school district.

John Paul Stevens:

But that’s the consequence of your position as I understand it, that they could do that and they would not have any risk of liability.

Gary S. Feinerman:

I think that’s a hypothetical risk, because again I haven’t seen any situations where that actually has occurred.

Anthony M. Kennedy:

Well, but it’s not that hypothetical when — there are two prongs.

Number one, the school has to agree first with the diagnosis, which in this case they didn’t even do that.

They had a good faith disagreement.

Second, they have to have an adequate IEP.

So there are two conditions.

Gary S. Feinerman:

That’s true, and I think — I think the answer to the question — it’s really, this is really a legislative question.

Perhaps Congress ought to further amend the statute to say in those situations where a school district is being obstreperous in refusing to comply with the hearing officer’s order, in those situations there is going to be an exception to the exception.

Gary S. Feinerman:

But it’s not — it’s not the statute that Congress wrote.

Congress wrote–

John Paul Stevens:

Doesn’t your interpretation of the statute create an incentive for the school board to just say, we’ll never provide any kind of education, special education, we will just tough it out?

Because they can’t lose, they can’t be liable if they do that, if I understand you correctly.

Gary S. Feinerman:

–I — I suppose hypothetically it does, but my understanding is that that just doesn’t happen.

In Schaffer v. Weast and other cases, the assumption–

Antonin Scalia:

–Would you be surprised to find a court decision which says that when the reason that the plaintiff cannot comply with the requirement that he first be in a plan, when the reason is — is the district’s refusal to abide by an order to prepare a plan, that subsection (2) does not apply?

Gary S. Feinerman:

–Your–

Antonin Scalia:

You can’t profit by your own malfeasance.

Gary S. Feinerman:

–That’s correct.

And I — I don’t think there could be reimbursement under subsection (ii).

Perhaps if there were a parallel Rehabilitation Act claim under 504, that might be a vehicle to get relief in a situation where the school district is acting as horribly as being hypothesized, but not under–

Antonin Scalia:

But you — you don’t think — you don’t think a court could say the only reason these people could not comply with (ii) is that the school district made it impossible by not complying with the order to provide an IEP; and, therefore, they — they can recover for the private placement?

Gary S. Feinerman:

–It’s conceivable that — that a court could hold that.

A court could also–

Antonin Scalia:

I think it’s more than conceivable.

I know a lot of courts that would hold that.

David H. Souter:

But your position is that there are basically two situations: One, the situation in which there is an administrative order to do an IEP and the school district says, no, we won’t do it.

Millions for defense; we are going right into appeal, and we are not going to prepare the IEP.

In that situation, as I understand it, you are saying, the parents have no way of getting relief under the statute.

In the case in which there is an order for the IEP and the school district prepares the IEP, even though the parents think it will be inadequate, there in fact is a ready remedy subject to two delays: One, the time to prepare the IEP; and, two, ten days to give it a try before the parents take the kid out of school.

That’s basically the scheme that you are proposing that the statute provides; is — is that correct?

Gary S. Feinerman:

–That’s the scheme that Congress wrote in the statute, yes, under — under (C)(ii).

And it has to work that way, because — I want to come back to a — to a point that was aired in the briefs, which is T.A.’s argument and the government’s argument rests upon the notion that section 1415(i)(2)(B)(iii) gives hearing officers the authority to award tuition reimbursement.

That provision doesn’t give hearing officers any authority to do anything, let alone to award tuition reimbursement.

The only provision in IDEA that gives hearing officers the authority to award tuition reimbursement is 1412(a)(10)(C)(ii).

So if the statute doesn’t work — the statute doesn’t work, and the Secretary’s interpretation of 1415(i)(2)(B)(iii) is implausible because it accords to hearing officers the authority that it doesn’t have.

There is another textual clue why the statute works in the way that I am suggesting, and that is in the ’97 amendments in subsections (iii) and (iv) Congress gave very explicit guidance to courts and hearing officers as to the factors the court and hearing officer should consider when deciding whether to award tuition reimbursement to a student who previously received special education services.

Anthony M. Kennedy:

The — the problem that the government and the parents have is they have to give some work to (ii).

Under — under their view (ii) doesn’t seem to do much work.

Anthony M. Kennedy:

And the problem with your position is that it seems in a way formalistic and in some cases to encourage intransigence.

If we adopted a presumption that the school district’s diagnosis was correct and a presumption that it’s — if — if there was a diagnosis of disability, that its individual education program was adequate, that would, it seems to me, not be all you wanted, but would ameliorate the position of the school district.

Would we have authority, do you think, to adopt such a presumption?

Gary S. Feinerman:

I think the — the Court already has adopted that presumption in Schaffer v. Weast.

School districts are presumed to be acting in good faith.

Anthony M. Kennedy:

Well, this — this would be a clear and convincing evidence presumption that the — that the IEP is — that the school district designs is right, that its diagnosis is right.

That’s not all you — that’s not all you would be asking for.

Gary S. Feinerman:

Well–

Anthony M. Kennedy:

But would we have authority to do that if we were to reject your interpretation of the statute?

Gary S. Feinerman:

–I suppose you would have the authority to do that.

Ruth Bader Ginsburg:

How have — how have hearing officers been proceeding?

I mean, here we had a case that went to a hearing officer.

There is no IEP when the hearing officer begins the process.

In the — on the eligibility or not, do hearing officers give deference to the school district and then — so that’s eligibility.

At the IEP stage, do they give deference to the student?

Gary S. Feinerman:

There is some deference given to — are you talking about the deference that the district court gives to the hearing officer?

Ruth Bader Ginsburg:

No, the hearing officer.

The hearing officer is the first-level decisionmaker.

And the school board gives its reasons why it thinks the child is ineligible; the parent, the reasons that the child is eligible.

That’s the threshold determination.

On that threshold determination of eligibility, do hearing officers presume in favor of the school district?

Gary S. Feinerman:

Not — not in this case.

In this case under Oregon law at the time — and this was a pre-Schaffer decision — the hearing officer put the burden of proof on the school–

John G. Roberts, Jr.:

Counsel–

Gary S. Feinerman:

–on the question of eligibility.

John G. Roberts, Jr.:

–why isn’t it the case that the school’s diagnosis is a related service under the statutory provision?

It seems to me to be very important service to the parents to know what the school’s diagnosis is.

Gary S. Feinerman:

I — I think that the diagnosis is more in terms of eligibility.

It’s under — under (b)(6), the hearing officer can decide — can consider issues of identification, eligibility, and placement.

John G. Roberts, Jr.:

No, I’m talking about what the parents received.

John G. Roberts, Jr.:

And they receive a diagnosis, and the statute covers — asks whether they previously received special education and related services.

Diagnosis would seem to me to be a service related to special education.

Gary S. Feinerman:

I — I don’t think that’s the way it works.

A diagnosis — a finding of eligibility or not is not a diagnosis.

It is just an eligibility finding, and that’s something that the parents can take to a — a due process hearing under 1415(f).

If there are no further questions, I will reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Salmons.

David B. Salmons:

That you, Mr. Chief Justice, and may it please the Court: The school district in this case improperly denied T.A., a child with a disability who had always been enrolled in public schools, access to all public special education services.

It asserts that because its wrong eligibility determinations prevented T.A. from receiving special education services, it is immune from reimbursing T.A.’s parents the cost of obtaining those services from another source.

John G. Roberts, Jr.:

What is wrong with ten days?

I mean it’s — it’s a big expense you are asking the school district to incur, that will take away funds from other programs.

And all — all they are saying is give it a try for ten days, and if it doesn’t work out, then you can go?

David B. Salmons:

I think there are several problems with that reading of the statute, Your Honor.

First of all, the ten-day period that is referenced in subsection (C)(iii) refers to the amount of notice that a district needs to receive before a child is removed from the public school system.

John G. Roberts, Jr.:

Oh, yes, the first day — the first day they say, look, we don’t think this is going to work out, so we are notifying you what we are going to do.

And they say, well, you’ve got to do that in ten days, and they said, okay, ten days.

David B. Salmons:

But that’s — that’s simply not the way these things work as a general matter, and let me just point out a few things about the normal process of developing IEP’s.

And, again, here the child never even got that far.

But, typically, IEP’s are developed at the end of the — of a school year for the following year.

And the parents at that point have a period of time in which to decide to go along with that plan or to give notice and then make alternative arrangements.

And it’s simply the — I mean — and that’s the way it works, because it’s important for parents to be able to get their child in an alternative program if they decide that’s what they want to do.

And if you wait until the school year has already started, those may not be available.

And the ten-day notice requirement–

John G. Roberts, Jr.:

Well, I suppose that’s right, but once the law is clarified, schools that specialize in — in treating these kids would be able — they would understand as well, and they would understand you’ve got to — the people who are going to be sending — most of the people who will be sending their children to the school have to wait ten days.

And it seems to me that the actual practice on the ground would work out pretty easily.

David B. Salmons:

–But, again, Your Honor, if you focus on the terms of the statute, the — even under Petitioner’s reading, the requirement would be to have previously received special education services, not to have tried out a particular plan.

It may be the case that the plan for the upcoming year is — is very different than the plan for the prior year.

Perhaps they have had another assessment, and they had substantially changed–

John G. Roberts, Jr.:

Well, which way does that cut?

John G. Roberts, Jr.:

It seems to me that cuts the other way.

David B. Salmons:

–Well, I–

John G. Roberts, Jr.:

Here’s a — here’s a new plan.

We’ve worked on it.

Here it is.

At least give it ten days — two school week tries.

David B. Salmons:

–I think the way that cuts, Your Honor, is — is that that reading of what you are positing, I guess, in this exchange what Congress might have had in mind, is not what they said in the statute.

They did not require parents to try out a particular plan; just that at some point in time they had previously received special education services.

John G. Roberts, Jr.:

With respect, counsel, what Congress provided is that the child must have previously received special education and related services.

David B. Salmons:

That’s right.

John G. Roberts, Jr.:

So I think they did provide that you’ve got to try it out at least for a minimal period.

David B. Salmons:

But not the particular plan that is the subject of the IEP, Your Honor.

That — that connection does not exist in the statute.

And — and we think it’s counter to what Congress intended.

John G. Roberts, Jr.:

Okay.

So what type of special education services do you think do count as having been previously received?

David B. Salmons:

Well — well, if I — if I may, the way we read this provision, and it’s set forth on pages 3 and 4 on the addendum to the blue brief, and we think it’s important that we read this as a whole and in context, is that subsection (C)(i) provides the general rule to govern the payment of private school tuition based on a unilateral placement by the parents.

And subsection (C)(i) creates the only expressed limitation on the right to reimbursement, and it does so only in instances where the school district has provided a free and appropriate public education.

We think subsection (C)(ii), (C)(iii), and (C)(iv) work together to govern the subset of cases that is Congress was most concerned about and that, in fact, are the most common scenario in which these disputes have arised.

Antonin Scalia:

Except that you are reading (C)(i) to say something that it doesn’t say.

It just says you don’t have to pay if the agency has made a free appropriate public education available.

David B. Salmons:

That is what–

Antonin Scalia:

And you read it to say you must pay whenever it hasn’t made, and it just doesn’t say that.

It — it’s a safe harbor for the school district.

It says, so long as you’ve made an appropriate public education available, you can’t be liable for any — any private school tuition.

Now, you want to expand that to say, and whenever that condition doesn’t exist, you are liable.

But it really doesn’t say that.

And — and the later sections suggest that it meant not to say that.

David B. Salmons:

–Well, that’s where we part company, Your Honor, because, in fact, that negative inference that you refer to is precisely what Petitioners attempt to read into subsection (C)(ii).

There is nothing in subsection (C)(ii) that provides any restriction on the ability to obtain reimbursement.

David B. Salmons:

It was written in permissive language.

John G. Roberts, Jr.:

In reading — in reading it that way, you are reading the phrase

“who previously received special education services. “

to mean also who previously did not receive special education services.

David B. Salmons:

No, Your Honor.

We are simply not reading that language “who previously received” to be a condition precedent.

John G. Roberts, Jr.:

Yeah, so it doesn’t matter whether they previously received or not.

David B. Salmons:

It does matter, Your Honor, because the provisions that follow in (C)(iii) and (C)(iv) that guide the exercise of discretion, in that category of cases that were of concern to Congress, only apply to the cases that are defined in subsection (C)(ii).

So in our reading the language (C)(iii) and (C)(iv).

It does not serve–

John G. Roberts, Jr.:

So you are saying Congress went to the trouble of spelling out this elaborate provision in (C)(iii) and (ii) and all the other things, but that was not the universe of the situations in which there could be reimbursement?

They went to that trouble, but then — at the end you want to say or some other provisions or some other circumstances?

David B. Salmons:

–Well, that’s right.

We think that Congress was focused on a particular set of cases where problems had arisen, and that’s where you already had a child in the process of receiving special education and you had parents who removed the child out of that process without giving adequate notice, and thereby short — excuse me — short-circuiting an ongoing collaborative relationship that Congress wanted to preserve.

Antonin Scalia:

Yes, but if — if you avoid that collaborative relationship entirely and just run off to a prior — to a private school right away, you get reimbursement.

Why?

David B. Salmons:

Well you don’t automatically get reimbursement.

Antonin Scalia:

Why would Congress — huh?

David B. Salmons:

You don’t — you don’t automatically get reimbursement, Your Honor.

There is just no categorical bar to seeking reimbursement.

You still have to show it’s an appropriate remedy, which always has been understood to require a showing that the parents acted reasonably and in good faith, and that they were sincere in their efforts to obtain services from the school.

Stephen G. Breyer:

What about more than that?

David B. Salmons:

The alternative–

Stephen G. Breyer:

Why not — I mean, suppose — the part I don’t understand in this statute, which may not be relevant — I would appreciate the help.

It seems to me that (a)(10) large (A) and then (F) have something to do with the parent who never goes to public school, the child just goes to private schools to begin with, and they get something.

If they have — if they have a disability, this program pays them something, right.

David B. Salmons:

–Your Honor–

Antonin Scalia:

I’m not following this.

I don’t know what section.

Stephen G. Breyer:

It’s at the very beginning, at the end of addendum page 1.

David B. Salmons:

–This is what’s — Your Honor, this is what’s known as the child find provision.

Stephen G. Breyer:

What is that?

David B. Salmons:

What it provides is that for — let me just step back for a moment and remind the Court that the obligation on the State is to ensure that children, all children with disabilities, regardless of whether they are in public or private school, have the opportunity for a free appropriate public education.

With respect to children in private school who are not seeking a free appropriate public school education from the public school district, the only requirement under the Act is that you seek them out, you find them, you identify them, and that you report that to the Department of Education, and that you get money for those children.

And for those children who are not enrolled in public school, you have to use a percentage of the funds you receive from the Federal Government–

Stephen G. Breyer:

All right.

So in other words–

David B. Salmons:

–to provide benefits that are available to all children.

Stephen G. Breyer:

–a parent who has a disabled child who never thinks about the public school system still gets some money, but not as much, for the disabled child?

David B. Salmons:

It’s not money to the parents, Your Honor.

Stephen G. Breyer:

It’s money to the school.

David B. Salmons:

It funds programs, for example speech therapy or something like that.

Stephen G. Breyer:

To the school.

David B. Salmons:

That they would then allow children in private school to — to benefit from.

Stephen G. Breyer:

And so, it’s money that goes to the school for a program?

David B. Salmons:

It’s not even necessarily money that goes to the private school.

Stephen G. Breyer:

Money that the children can get.

I get it.

David B. Salmons:

It goes to the public schools, that they provide services that they may make available to children regardless of their placement.

Stephen G. Breyer:

All right.

Now, would it then work, what is — would this system work under the statute?

You say, parents, if you are going to a disabled child, you simply go to a private school, you get the services you just mentioned.

Now, if you put in — put the child in a public school, and they find a free appropriate public education, fine, that’s the end of that, you have to do it.

Now, if they don’t give you a decent one, you can, you can send the child to a private school, but it has — you have to give it a shot to the public school system.

Now, that’s what you don’t want the interpretation to be?

You don’t — you are against that.

But — but let’s amend it a little.

David B. Salmons:

That’s not — I would not describe it that way, Your Honor, if I — I don’t mean to–

Stephen G. Breyer:

I am reading the language.

You may require the district to pay for someone who has been enrolled in special services–

David B. Salmons:

–I mean, again, just keep in mind the facts of this case.

This is a child who was in the public school system–

Stephen G. Breyer:

–You haven’t heard my amendment.

David B. Salmons:

–Okay.

I’m sorry, Your Honor.

Go ahead.

Stephen G. Breyer:

My amendment is the norm will be give the public school a shot, but there could be circumstances, you’re getting the run-around, there is need to put that child in a public school now.

In other words, special equitable circumstances that make it reasonable for the parent not to give the school a shot, though that’s the norm.

And in those unusual circumstances, there would remain grounds for equitable relief.

What about that as an overall interpretation of the statute which has several parts to it?

David B. Salmons:

I would submit that the way we read the statute, Your Honor, in fact, does precisely that.

Because, the school district — just again, take this–

Stephen G. Breyer:

But you have to be willing to accept that it’s an unusual situation, though it may well exist, that the judge is going to reimburse the parent where that parent didn’t give the public school a shot.

They will have to show there is a good reason for not doing that.

David B. Salmons:

–The — the difficulty I have–

Stephen G. Breyer:

Is that all right with you or not?

David B. Salmons:

–Well, the difficulty I have with your question, Your Honor, is that the school district always has a shot under the Act.

In this case, the school district assessed the child in 2001 and again in 2003, and both times it erroneously concluded that the child–

Stephen G. Breyer:

Well, you are simply saying that it was reasonable for the parent here.

I’m not asking that question.

David B. Salmons:

–No, not just that it’s reasonable, but in the process of assessing the child, in developing an individual education plan that is appropriate for that child, that is precisely the shot that the statute gives the public school system to get it right.

What the statute does–

Ruth Bader Ginsburg:

Mr. Salmons, I thought that the — the courts, the district court, will not provide for tuition reimbursement, unless at least two things are shown.

One is that the school district did not provide an adequate education for this child.

And two, that the private school did, and then there are equitable considerations.

David B. Salmons:

–That is absolutely correct.

Ruth Bader Ginsburg:

So you must find both, not just that the private school was a good place, but that the school district did not offer an adequate education for the child.

David B. Salmons:

That is — that is correct.

That is what this Court held in Carter.

That’s what the regulations say.

David B. Salmons:

I would note that there is nothing in the text of the statute and the provisions that Petitioner relies on, (C)(ii) for example, that makes it a statutory requirement to show that the private placement is reasonable as a — as a condition precedent to obtain tuition reimbursement.

But both sides concede that that’s required, even though it’s not in the statute.

Ruth Bader Ginsburg:

But procedurally we — we know that there is a provision addressed to a court for equitable relief.

The question was put before: Where does the hearing officer get the authority to order tuition reimbursement?

Because the statute on which you rely for the court speaks only to the court’s authority.

David B. Salmons:

Thank you, Your Honor.

I am happy to answer that question.

But Petitioner makes this a centerpiece of their reply brief and I think they just misread the statute.

And again, keep in mind that these amendments in 1997 were written against a backdrop of this longstanding statute and this Court’s interpretations of it.

The most direct place where the statute provides hearing officers the authority to hear address reimbursement claims and to award reimbursement — and this is on page 9 of the addendum in the blue brief — is 1415(b)(6).

This has always been in the statute and it states that the parents must be provided an opportunity to present complaints with respect to

“any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. “

That is — again, that has always been understood to include the right to seek reimbursement before the hearing officer.

And this Court in Burlington cited legislative history from the 1975 Act that noted that hearing officers could award reimbursement and address such claims in concluding that it was part of the appropriate relief that courts ought to be able to have under 1415.

Antonin Scalia:

Are any of these other procedures — I took these to be procedures that have to be provided by the school district, not — not by the hearing officer.

David B. Salmons:

These are — these are required — this whole section, Your Honor, 1412, is entitled “State Eligibility”, and these are all requirements that States have to provide for process in order to obtain funds under the Act, and so it is a requirement that States provide hearing officers that have the ability to award reimbursement–

Antonin Scalia:

But it doesn’t say hearing officers.

“An opportunity to present complaints with respect to any matter relating to the identification– “

David B. Salmons:

–Those complaints–

Antonin Scalia:

–to present the complaint to the principal.

David B. Salmons:

–No, Your Honor.

This is a reference to the due process complaint notice that is referenced elsewhere in the statute.

I believe Petitioner would agree with me that that’s what this references.

David H. Souter:

No, but the reference is to a right to be heard on certain subjects.

It doesn’t say anything about authorizing a particular individual or officer within a school system to award relief.

The problem is, it says you can be heard.

It doesn’t say who will tell you or who will tell the school district to write a check.

David B. Salmons:

Right.

But keep in mind that the judicial review process that the statute provides — and this is at page 17 of the addendum.

The right to file a Federal action is limited to those matters that are raised in the due process complaint notice filed before the hearing officer.

David B. Salmons:

This is an exhaustion requirement.

David H. Souter:

But can you raise the — you can raise the claim to eligibility to a — a private education here without the hearing officer having the authority to order the school district to provide it.

David B. Salmons:

That has not been the interpretation of this Act, Your Honor, and I would refer the Court to 34 CFR 300.148(b), which is a regulation that states that hearing officers can award reimbursement and that has been around since the mid1980s.

My point is that is — the Congress enacted these amendments in 1997 against a subtle understanding of how this Act works.

And it’s always been understood that hearing officers can award reimbursement.

There was no need to provide in the ’97 amendments that hearing officers can also award relief.

And again because it’s an — it’s an exhaustion requirement and the judicial review provision only relates to the things that you have raised before the hearing officer, it makes no sense to say a court can award reimbursement but you can’t get reimbursement from the hearing officer.

That’s the subject of the review of the Federal court action.

David H. Souter:

No, but it might make senses to say that the hearing officer can determine eligibility; it is then up to the school to pay it; and if the school does not pay it, then you have got to go into court and get an award.

David B. Salmons:

In fact, Your Honor, the hearing officers have always been permitted to award reimbursement, as occurred in this case, and then the school district can decide either to pay that or to seek review if they — if they so choose.

Antonin Scalia:

And it might make also sense to say that if the hearing officer has no authority to award a certain type of relief, neither does a court, under that general provision that–

David B. Salmons:

But of course this Court in Burlington held the court did have that authority and it relied on the fact that it has always been understood that hearing officers have that authority in reaching that conclusion in Burlington.

Antonin Scalia:

–That’s right, but — but with these new provisions, if the hearing officer doesn’t have the authority to award the kind of relief that was awarded here, then the court wouldn’t either.

David B. Salmons:

Well, I — with respect, I think there is nothing in the ’97 amendments–

Antonin Scalia:

Well, you agree they go, as we say, in pari passu–

David B. Salmons:

–Well, I do think that it doesn’t make sense to say–

Antonin Scalia:

–that — that whatever the hearing officer can do, the court can do.

David B. Salmons:

–I think generally–

Antonin Scalia:

–and whatever he can’t do, the court can’t do.

David B. Salmons:

–I think they ought to be read together, yes, Your Honor.

But I think they ought to be read to provide for the authority to provide tuition reimbursement.

One statutory point I would like to make, Your Honor, is that under Petitioner’s reading of the Act, if you read (C)(ii) to be — that reference to (C)(i) has no meaning whatsoever.

It does not work under the Act at all.

Whereas on our reading of the statute, (C)(ii) still does work.

It’s not a precondition; it doesn’t do the work that Petitioner suggests; it does a more limited — serve a more limited function, but it still serves that identifying role for the factors Congress wanted applied when it was focused on how to preserve relationships, ongoing collaborative relationships through the IEP process that warrant preservation.

One other point I make, Your Honor, and Justice Scalia, you make reference to this principle of equity, that you ought not be allowed to prevent something from happening and then come into court and claim,

“Ha, ha, they didn’t satisfy a condition. “

And that was a point that was made by Justice Cardozo in the R.H. Stearns case that we rely on, where he said he who prevents a thing from being done may not avail himself of the nonperformance which he himself has occasioned.

That’s precisely what happened here.

As this case to this Court, it is established that is a child who was entitled to receive special education services back in 2001.

David B. Salmons:

The only reason he did not receive those services is because the district violated its statutory duties–

Ruth Bader Ginsburg:

I thought in 2001 even the parents agreed that he didn’t — that they didn’t want to put him in special education?

David B. Salmons:

–The parents agreed, Your Honor, that he did not qualify for the learning disabilities they tested him for, but they had an obligation under the Act — and this was found by the hearing officer and the complaint that was filed was filed within the two-year limitation to challenge that 2001 determination, and that that was there, they had an obligation to test him for those other health impairments at that time.

John G. Roberts, Jr.:

Thank you, counsel.

David B. Salmons:

Thank you.

John G. Roberts, Jr.:

Mr. Miller.

Eric D. Miller:

Mr. Chief Justice, and may it please the Court: Had Petitioner provided T.A. a special education that was later determined to be inadequate, there would be no question that the district court would have authority and discretion to determine whether an award of private school tuition reimbursement was appropriate.

Petitioner’s view is that because it offered no special education at all, it was therefore categorically immune from such an award.

That position is not supported by the statute and it’s inconsistent with the reasonable interpretation of the Secretary of Education.

There is no basis for reading the statute to create what effectively would be an incentive for districts to stonewall and to say that if they don’t–

John G. Roberts, Jr.:

Well, for 10 days, right?

Even assuming the bad faith that you are ascribing to the school district, it would only work for 10 days, right?

Eric D. Miller:

–Well–

John G. Roberts, Jr.:

And then they would have — then they would have previously received special education services, and they could proceed.

Eric D. Miller:

–We were not assuming bad faith.

Or–

John G. Roberts, Jr.:

“Stonewall” sounds to me like bad faith.

Eric D. Miller:

–Well there–

John G. Roberts, Jr.:

That was the word you used.

Eric D. Miller:

–I — Congress — there is no reason to suppose that Congress wanted to create an incentive or to reward districts that do do that.

Ruth Bader Ginsburg:

But we are talking about two different things.

I think the Chief was talking about putting the child in special education, and keeping the child there for 10 days.

You are talking about the school district that says

“no special education; this child is not eligible. “

Eric D. Miller:

That’s absolutely right.

So in a case like this, there is — there is nothing to try for 10 days because the district has found him not eligible, they haven’t offered any special education or related services.

Now to the extent–

John G. Roberts, Jr.:

Well, let’s move to the situation where they have a plan that the parents regard as inadequate.

Eric D. Miller:

–In the case–

John G. Roberts, Jr.:

In that situation all they would have to do is to have the child try the plan for 10 days.

Eric D. Miller:

–Well if the — to the extent that there is an interest in having parents try out the plan, Petitioner’s reading of the statute is poorly tailored to that objective, because it doesn’t require that they try the specific plan that’s being proposed for 10 days.

Even under Petitioner’s reading the statute simply would require that the child at some point have received some special education and related services.

It wouldn’t have to be under the plan that was being tried.

And–

David H. Souter:

But the odds are that it would be under the plan.

I mean, what you say is theoretically possible, but in the real world it’s probably going to be under the plan, isn’t it?

Eric D. Miller:

–Well, not necessarily because there’s a new plan at least once a year under the statute, and they are typically proposed at the end of a school year for the start of the new school year.

So there wouldn’t be, on Petitioner’s reading, a requirement that you show up for the first 10 days of the new year; you would just have to give notice after the IEP is proposed in May or June.

You give your 10 days’ notice.

You receive special education services under the old plan, under the previous year.

And under — on Petitioner’s reading, the statute would be no barrier to reimbursement there.

Now, of course, the district courts do have considerable equitable discretion, and we’re not suggesting that reimbursement would be mandatory in that case or in any case.

And–

Ruth Bader Ginsburg:

And the parents — I think you agree that the parents would have the burden of showing both that the school did not provide an adequate education, an appropriate education, and that the private school does?

Eric D. Miller:

–That’s — that’s absolutely right.

And they would also, in our view, have to show the district court that they had genuinely cooperated with the public school in making their child available for evaluation–

Anthony M. Kennedy:

Suppose we thought it were sensible to add to that burden the further rule that the school district is presumed to have made the correct diagnosis and, if there is a plan in that kind of case, that the plan was adequate, and that the parent would have to show by clear and convincing evidence that this is not so, rather than just inventing it and pulling it out of the sky.

Is — is there some authority in the statute that would give us warrant to do that?

Or is there some — any cases that would give us warrant to — to establish a presumption of that kind in order to recognize the long-standing expertise of the States in this matter and in order to allow section (ii) to do some work?

Eric D. Miller:

–Well, a clear and convincing evidence presumption would be difficult to reconcile, I think, with 1415(i)(2)(C)(iii), which says that the district court decision should be based on the preponderance of the evidence, but it is certainly within the district court’s discretion and it would be within this Court’s discretion, I think, to prescribe principles to guide the exercise of the district courts’ equitable discretion–

Ruth Bader Ginsburg:

The district court doesn’t get into the act until the hearing officer is done.

Eric D. Miller:

–Right.

Ruth Bader Ginsburg:

And so it would be odd to have a presumption applicable in court that isn’t also applicable to the hearing officer, because the court is reviewing a decision by the hearing officer.

Eric D. Miller:

Right.

Well, the — the standard in both stages of the proceeding is by a preponderance of the evidence, and the parents, as the party challenging what the school has done, have the burden.

But at both stages, it would be appropriate to consider whether they were genuinely seeking a free appropriate public education, and I think it would be entirely appropriate and consistent with the preponderance standard for the hearing officer or the court to take due account of the fact that the school district has some expertise and to give some deference to what it has proposed.

Antonin Scalia:

(i)(2)(B)(iii)–

Ruth Bader Ginsburg:

Is the department–

Antonin Scalia:

–(i)(2)(B)(iii)?

Eric D. Miller:

Oh, it’s (i)(2)(B) — it’s been amended in 2004.

Eric D. Miller:

There’s no change in the language, but it’s now–

Antonin Scalia:

It’s now (C)?

Eric D. Miller:

–(C).

Antonin Scalia:

(C)(iii).

Ruth Bader Ginsburg:

–Does the — does the department have a regulation that says the hearing officer may order the private school — the parents to be reimbursed for private school tuition?

Because it’s not in the statute.

Eric D. Miller:

34 C.F.R. 300.148(b) says that disagreements between the parents and a public agency regarding the availability of a program appropriate for the child and the question of financial reimbursement are subject to the due process hearing procedures.

So yes, that regulation gives hearing officers the authority to award reimbursement, as indeed the hearing officer had done in Burlington.

Burlington was the case where the reimbursement award was made in the first instance by a hearing officer, and, of course, the Court held that that was appropriate.

And–

John G. Roberts, Jr.:

Counsel, this is Spending Clause legislation.

Do you have any rough idea of how much of the obligation incurred by the States is reimbursed by the Federal Government?

What percentage?

Eric D. Miller:

–I think of the additional costs of treating special education children, above those of educating other children, I think approximately 10 percent, 10 to 12 percent, is reimbursed by the Federal Government.

John G. Roberts, Jr.:

So if this interpretation vastly expands the liability of school districts in that particular area, isn’t that a consideration we should consider?

Since they accept — the States accept 10 percent of the funds to incur these obligations and then you are expanding the obligation in a way that we may at least find is ambiguous, isn’t that a pertinent factor?

Eric D. Miller:

There’s no basis for supposing that there would be a vast expansion of liability, and there are some statistics on this in the National Disability Rights Network’s amicus brief at pages 13 and 14.

Of about 6 million children in the United States who are receiving special education, barely 1 percent of those are in private placements, and the vast majority of those are agreed-upon placements between school districts and the parents.

So this sort of unilateral private placement is quite rare, because, first, the parents do it at their own financial risk, and so there’s a real barrier to parents doing it, because they have to be pretty sure that they are right and that they are going to be able to meet the demanding standards of — satisfying the district court that an award of tuition reimbursement is appropriate, and if they don’t do that–

Anthony M. Kennedy:

If the–

Eric D. Miller:

–they’re going to be–

Anthony M. Kennedy:

–If the parents are entitled and the child is entitled to the special education and the school doesn’t give it, and there are two schools — private schools in the community, A and B.

A charges, what is it, $5,200 a month tuition; the other is considerably less.

And they both have adequate programs for the child.

Is the hearing examiner entitled to reimburse only for the lower amount, or is the parent entitled to send the child to the — to the more expensive school?

Eric D. Miller:

–No.

What this Court said in Carter is that it’s appropriate for the hearing officer to take into account whether the cost of the private education was unreasonable.

So in a situation where you had two basically equivalent schools, that would certainly be an appropriate thing for the hearing officer to take into account in limiting or denying reimbursement.

Ruth Bader Ginsburg:

Or there could be, I suppose, an order that any tuition in excess of a certain amount would be the parents’ responsibility.

Eric D. Miller:

That’s — that’s right.

Eric D. Miller:

That would be within the discretion of the hearing officer.

In a case like this, where you have a residential placement and the residential component of it — there has been no suggestion that that was — had some educational purpose or was a part of providing an appropriate education, it would also be appropriate for the court to decide to disaggregate that and say we are only paying — the school district only has to pay for the educational component.

Antonin Scalia:

Let me be clear.

Am I correct that under — under the theory of the statute that you are supporting, it would be possible for a parent, without first consulting with the school at all, to put the child in a private school and then later to request public school services, and when it is — when they are denied or they are inadequate, all that public school — private school tuition would be reimbursable?

Eric D. Miller:

There would be no categorical bar in the statute in that situation, but a district court confronted with those facts would most likely conclude that the parents had not genuinely sought a free appropriate public education and hadn’t appropriately cooperated with the school district.

John G. Roberts, Jr.:

Thank you, counsel.

Eric D. Miller:

Thank you.

John G. Roberts, Jr.:

Mr. Feinerman, you have 4 minutes remaining.

Gary S. Feinerman:

Thank you, Mr. Chief Justice.

I’d like to address the two provisions that we have heard today for the first time.

T.A. and the government are resting their argument that tuition reimbursement is permitted in the unilateral placement context to students who had not previous received.

The regulation 300.148 — counsel referenced subsection (b), Disagreements about FAPE, and it does say that the hearing officer can consider the question of financial reimbursement.

And the very next subsection, (c), is entitled Reimbursement for Private School Placement, and that provision speaks only to students who previously received special education and related services under the authority of a public agency.

Ruth Bader Ginsburg:

Where are you reading this?

Gary S. Feinerman:

This isn’t — this regulation was brought up at argument.

It’s not in any of the addendums, but I — I would direct the Court’s attention to subsection (c) of 300.148.

In terms of the — the provision that T.A.’s lawyer addressed, 1415(b)(6), no argument — there’s no argument in the briefs that 1415(b)(6) gives hearing officers the authority to grant tuition reimbursement in these circumstances.

The Department of Education did not rely on this provision when articulating its commentary that tuition reimbursement is still permitted under these circumstances.

The Secretary of Education relied upon the 1415(i)(2)(B)(iii) provision.

That of course, refers only to courts.

And even if the argument were properly presented, which it isn’t, it would be subject to the same dynamic that’s in play with respect to 1412(a)(10)(C)(ii).

You have a very general provision giving hearing officers authority.

Congress got specific in 1997.

There’s a heading — enacted a provision under the heading Reimbursement for Private School Placement.

I think that clearly indicates that’s where Congress intended to repose the authority of hearing officers to order tuition reimbursement to unilaterally placed children.

We also have the — and — and it just doesn’t work to say that 1415(i)(2)(B)(iii) somehow gives hearing officers authority.

Even if it were interpreted that way prior to 1997, in 1997 Congress enacted the statute that expressly referenced hearing officers and courts, and allowed both of them to give tuition reimbursement.

So even if 1415 were interpreted prior to ’97 — incorrectly, we would submit — to give hearing officers that authority, after 1997 where Congress actually went to the trouble of saying hearing officers and courts can give tuition reimbursement in certain circumstances, that — that prior interpretation, whatever its merits back then, no longer is valid–

Stephen G. Breyer:

Well, what happens — what happens if the hearing officer can’t, but why couldn’t the court?

I mean, they see an unusual situation.

Stephen G. Breyer:

The parents were justified, and it doesn’t say there are no circumstances other than — where you couldn’t — where they may not pay.

So the judge says, I think this is a situation where it is — it is equitable to pay the — the reimbursement.

Gary S. Feinerman:

–That’s correct, but–

Stephen G. Breyer:

Why not?

What says you can’t do that, other than your basic point about the “may require”?

Gary S. Feinerman:

–The Spending Clause, the headings that Congress used–

Stephen G. Breyer:

All right.

But anyway, the regs don’t say anything about that.

Gary S. Feinerman:

–At any rate — and it’s a system that doesn’t make any sense, because for children who did previously receive and go to the hearing officer to challenge either an eligibility determination or an improper IEP, the hearing officer could award tuition reimbursement, but for children who didn’t previously receive and then they went in front of the hearing officer, they would have to — I don’t know what the word would be — appeal to the district court in order to get tuition reimbursement.

Is it conceivable that that that could be the system–

Stephen G. Breyer:

You’re saying the statute says the hearing officer can’t do that no matter what.

That’s a separate argument.

Gary S. Feinerman:

–That’s correct, but I’m saying if–

Stephen G. Breyer:

All right.

Gary S. Feinerman:

–If T.A. is right, that would be the system.

Thank you very much.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.