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Mark Fass

New York Law Journal

10-11-2007

The U.S. Supreme Court has affirmed a federal appellate decision allowing the father of a learning-disabled child to seek private school tuition reimbursement from New York City without first giving the city's public school program a chance to meet the boy's needs.

Just nine days after hearing oral arguments in Board of Education v. Tom F., 06-637, the Court split 4-4, thereby affirming the 2nd U.S. Circuit Court of Appeals' finding in favor of Mr. F. -- the boy's father, former Viacom chief Tom Freston.

In its two-sentence, per curiam opinion, the Court did not reveal the judges' individual votes, stating only, "The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the decision of this case."

Per Court protocol, Kennedy did not reveal the reason for his recusal.

The case centers on conflicting interpretations of a 1997 amendment to the Individuals with Disabilities Education Act (IDEA), which requires states to provide "free appropriate" public education for students with disabilities. The specific issue is whether that law requires children -- here, Freston's son, Gilbert -- to first receive "special education and related services" from a public agency before their families pursue reimbursement.

An independent hearing officer ruled in favor of the Frestons, but Southern District of New York Judge George Daniels sided with the city. In a summary order in August 2006, the 2nd Circuit reversed Daniels' decision, saying it would lead to "absurd" results.

In the circuit opinion, Judge Edward R. Korman, the chief judge of the Eastern District of New York, sitting by designation, said the city's view of the statute would "place the parents of children with disabilities in the untenable position of acquiescing to an inappropriate placement in order to preserve their right to seek reimbursement from the public agency that devised the inappropriate placement."

Wednesday, the U.S. Supreme Court affirmed that ruling by its split vote.

Throughout the dispute, which dates to 1999, Freston's supporters have argued that by forcing parents to enroll their special-needs children first in the city's schools, New York would potentially subject the already challenged students to unnecessary disruptions.

The city contended that it spent millions of dollars each year reimbursing the private school tuition spent by parents who had not first given the city's public schools a chance, as required -- the city argued -- by federal law. According to city statistics, just under one-half of the approximately 2,200 tuition-reimbursement requests filed in 2006 came from parents who had not first enrolled their children in public school.

"We're going to keep handling the cases the same way we have been," said Michael Best, general counsel of the city's Department of Education. "We're going to litigate when appropriate, we're going to settle when appropriate."

Leonard Koerner, the Law Department's appeals chief who argued the city's case before the Supreme Court, noted in an interview Wednesday that the issue may be further litigated. As a 4-4 affirmance, the decision has no precedential value outside of the 2nd Circuit.

The decision leaves a split in authority with the 1st Circuit, where an appellate panel ruled that students must first avail themselves of the public school system before their parents seek reimbursement.

If Justice Kennedy recused himself from the present case for a reason specifically related to Tom F. -- a connection with the city or a relationship with Mr. Freston -- the Court may elect to revisit the issue and, essentially, allow Kennedy to cast the deciding vote.

A strong candidate has already presented itself to break the tie: Frank G. v. Hyde Park, a case decided by the 2nd Circuit simultaneously with Tom F. In Frank G., the appellate court came to an identical, if more intricate, holding.

"[The Supreme Court] never acted on that petition," Koerner said. "Instead, they took ours, because it was less complicated."

Analysts seeking to handicap a potential Supreme Court hearing of Frank G. can glean very little from last week's arguments in Tom F., which revealed little of how the 4-4 split may have divided. Chief Justice John Roberts -- who dominated the questioning, at one point joking that his allotted time had expired -- questioned both sides vigorously. Perhaps the only justices to show their hands were Justice Antonin Scalia, who appeared to be sympathetic to the city's arguments, and Justice Samuel Alito, who appeared skeptical.

Paul G. Gardephe of Patterson Belknap Webb & Tyler represented Mr. Freston before the Supreme Court. He did not return a call for comment.

Freston, a founder of MTV, who reportedly accepted a severance of more than $80 million buyout when he left Viacom last year, announced recently via an attorney that he intended to donate all reimbursed tuition to his son's school, the Upper West Side's Stephen Gaynor School for students with learning disabilities, along with his own "six-figure" gift.