Forest Grove School District v. T. A. , 129 S. Ct. 2484 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FOREST GROVE SCHOOL DISTRICT v. T. A.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 08–305. Argued April 28, 2009—Decided June 22, 2009
After a private specialist diagnosed respondent with learning disabili
ties, his parents unilaterally removed him from petitioner public
school district (School District), enrolled him in a private academy,
and requested an administrative hearing on his eligibility for special
education services under the Individuals with Disabilities Education
Act (IDEA), 20 U.S. C. §1400 et seq. The School District found re
spondent ineligible for such services and declined to offer him an in
dividualized education program (IEP). Concluding that the School
District had failed to provide respondent a “free appropriate public
education” as required by IDEA, §1412(a)(1)(A), and that respon
dent’s private-school placement was appropriate, the hearing officer
ordered the School District to reimburse his parents for his private
school tuition. The District Court set aside the award, holding that
the IDEA Amendments of 1997 (Amendments) categorically bar re
imbursement unless a child has “previously received special educa
tion or related services under the [school’s] authority.”
§1412(a)(10)(C)(ii). Reversing, the Ninth Circuit concluded that the
Amendments did not diminish the authority of courts to grant reim
bursement as “appropriate” relief pursuant to §1415(i)(2)(C)(iii). See
School Comm. of Burlington v. Department of Ed. of Mass., 471 U.S.
359, 370.
Held: IDEA authorizes reimbursement for private special-education
services when a public school fails to provide a FAPE and the private
school placement is appropriate, regardless of whether the child pre
viously received special-education services through the public school.
Pp. 6–17.
(a) This Court held in Burlington and Florence County School Dist.
Four v. Carter, 510 U.S. 7, that §1415(i)(2)(C)(iii) authorizes courts
2 FOREST GROVE SCHOOL DIST. v. T. A.
Syllabus
to reimburse parents for the cost of private-school tuition when a
school district fails to provide a child a FAPE and the private-school
placement is appropriate. That Burlington and Carter involved the
deficiency of a proposed IEP does not distinguish this case, nor does
the fact that the children in Burlington and Carter had previously re
ceived special-education services; the Court’s decision in those cases
depended on the Act’s language and purpose rather than the particu
lar facts involved. Thus, the reasoning of Burlington and Carter ap
plies unless the 1997 Amendments require a different result. Pp. 6–
8.
(b) The 1997 Amendments do not impose a categorical bar to reim
bursement. The Amendments made no change to the central purpose
of IDEA or the text of §1415(i)(2)(C)(iii). Because Congress is pre
sumed to be aware of, and to adopt, a judicial interpretation of a
statute when it reenacts that law without change, Lorillard v. Pons,
434 U.S. 575, 580, this Court will continue to read §1415(i)(2)(C)(iii)
to authorize reimbursement absent a clear indication that Congress
intended to repeal the provision or abrogate Burlington and Carter.
The School District’s argument that §1412(a)(10)(C)(ii) limits reim
bursement to children who have previously received public special
education services is unpersuasive for several reasons: It is not sup
ported by IDEA’s text, as the 1997 Amendments do not expressly
prohibit reimbursement in this case and the School District offers no
evidence that Congress intended to supersede Burlington and Carter;
it is at odds with IDEA’s remedial purpose of “ensur[ing] that all
children with disabilities have available to them a [FAPE] that em
phasizes special education . . . designed to meet their unique needs,”
§1400(d)(1)(A); and it would produce a rule bordering on the irra
tional by providing a remedy when a school offers a child inadequate
special-education services but leaving parents remediless when the
school unreasonably denies access to such services altogether. Pp. 8–
15.
(c) The School District’s argument that any conditions on accepting
IDEA funds must be stated unambiguously is clearly satisfied here,
as States have been on notice at least since Burlington that IDEA au
thorizes courts to order reimbursement. The School District’s claims
that respondent’s reading will impose a heavy financial burden on
public schools and encourage parents to enroll their children in pri
vate school without first trying to cooperate with public-school au
thorities are also unpersuasive in light of the restrictions on reim
bursement awards identified in Burlington and the fact that parents
unilaterally change their child’s placement at their own financial
risk. See, e.g., Carter, 510 U. S., at 15. Pp. 15–16.
523 F.3d 1078, affirmed.
Cite as: 557 U. S. ____ (2009) 3
Syllabus
STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined. SOUTER,
J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
Cite as: 557 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–305
_________________
FOREST GROVE SCHOOL DISTRICT, PETITIONER
v. T. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2009]
JUSTICE STEVENS delivered the opinion of the Court.
The Individuals with Disabilities Education Act (IDEA
or Act), 84 Stat. 175, as amended, 20 U.S. C. §1400 et seq.,
requires States receiving federal funding to make a “free
appropriate public education” (FAPE) available to all
children with disabilities residing in the State,
§1412(a)(1)(A). We have previously held that when a
public school fails to provide a FAPE and a child’s parents
place the child in an appropriate private school without
the school district’s consent, a court may require the dis
trict to reimburse the parents for the cost of the private
education. See School Comm. of Burlington v. Department
of Ed. of Mass., 471 U.S. 359, 370 (1985). The question
presented in this case is whether the IDEA Amendments
of 1997 (Amendments), 111 Stat. 37, categorically prohibit
reimbursement for private-education costs if a child has
not “previously received special education and related
services under the authority of a public agency.”
§1412(a)(10)(C)(ii). We hold that the Amendments impose
no such categorical bar.
2 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
I
Respondent T. A. attended public schools in the Forest
Grove School District (School District or District) from the
time he was in kindergarten through the winter of his
junior year of high school. From kindergarten through
eighth grade, respondent’s teachers observed that he had
trouble paying attention in class and completing his as
signments. When respondent entered high school, his
difficulties increased.
In December 2000, during respondent’s freshman year,
his mother contacted the school counselor to discuss re
spondent’s problems with his schoolwork. At the end of
the school year, respondent was evaluated by a school
psychologist. After interviewing him, examining his
school records, and administering cognitive ability tests,
the psychologist concluded that respondent did not need
further testing for any learning disabilities or other health
impairments, including attention deficit hyperactivity
disorder (ADHD). The psychologist and two other school
officials discussed the evaluation results with respondent’s
mother in June 2001, and all agreed that respondent did
not qualify for special-education services. Respondent’s
parents did not seek review of that decision, although the
hearing examiner later found that the School District’s
evaluation was legally inadequate because it failed to
address all areas of suspected disability, including ADHD.
With extensive help from his family, respondent com
pleted his sophomore year at Forest Grove High School,
but his problems worsened during his junior year. In
February 2003, respondent’s parents discussed with the
School District the possibility of respondent completing
high school through a partnership program with the local
community college. They also sought private professional
advice, and in March 2003 respondent was diagnosed with
ADHD and a number of disabilities related to learning and
memory. Advised by the private specialist that respon
Cite as: 557 U. S. ____ (2009) 3
Opinion of the Court
dent would do best in a structured, residential learning
environment, respondent’s parents enrolled him at a
private academy that focuses on educating children with
special needs.
Four days after enrolling him in private school, respon
dent’s parents hired a lawyer to ascertain their rights and
to give the School District written notice of respondent’s
private placement. A few weeks later, in April 2003,
respondent’s parents requested an administrative due
process hearing regarding respondent’s eligibility for
special-education services. In June 2003, the District
engaged a school psychologist to assist in determining
whether respondent had a disability that significantly
interfered with his educational performance. Respon
dent’s parents cooperated with the District during the
evaluation process. In July 2003, a multidisciplinary team
met to discuss whether respondent satisfied IDEA’s dis
ability criteria and concluded that he did not because his
ADHD did not have a sufficiently significant adverse
impact on his educational performance. Because the
School District maintained that respondent was not eligi
ble for special-education services and therefore declined to
provide an individualized education program (IEP),1 re
spondent’s parents left him enrolled at the private acad
emy for his senior year.
The administrative review process resumed in Septem
ber 2003. After considering the parties’ evidence, includ
ing the testimony of numerous experts, the hearing officer
issued a decision in January 2004 finding that respon
dent’s ADHD adversely affected his educational perform
ance and that the School District failed to meet its obliga
——————
1 An IEP is an education plan tailored to a child’s unique needs that is
designed by the school district in consultation with the child’s parents
after the child is identified as eligible for special-education services.
See 20 U.S. C. §§1412(a)(4), 1414(d).
4 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
tions under IDEA in not identifying respondent as a stu
dent eligible for special-education services. Because the
District did not offer respondent a FAPE and his private
school placement was appropriate under IDEA, the hear
ing officer ordered the District to reimburse respondent’s
parents for the cost of the private-school tuition.2
The School District sought judicial review pursuant to
§1415(i)(2), arguing that the hearing officer erred in grant
ing reimbursement. The District Court accepted the
hearing officer’s findings of fact but set aside the reim
bursement award after finding that the 1997 Amendments
categorically bar reimbursement of private-school tuition
for students who have not “previously received special
education and related services under the authority of a
public agency.” §612(a)(10)(C)(ii), 111 Stat. 63, 20 U.S. C.
§1412(a)(10)(C)(ii). The District Court further held that,
“[e]ven assuming that tuition reimbursement may be
ordered in an extreme case for a student not receiving
special education services, under general principles of
equity where the need for special education was obvious to
school authorities,” the facts of this case do not support
equitable relief. App. to Pet. for Cert. 53a.
The Court of Appeals for the Ninth Circuit reversed and
remanded for further proceedings. The court first noted
that, prior to the 1997 Amendments, “IDEA was silent on
the subject of private school reimbursement, but courts
had granted such reimbursement as ‘appropriate’ relief
under principles of equity pursuant to 20 U.S. C.
§1415(i)(2)(C).” 523 F.3d 1078, 1085 (2008) (citing Bur
lington, 471 U. S., at 370). It then held that the Amend
ments do not impose a categorical bar to reimbursement
——————
2 Althoughit was respondent’s parents who initially sought reim
bursement, when respondent reached the age of majority in 2003 his
parents’ rights under IDEA transferred to him pursuant to Ore. Admin.
Rule 581–015–2325(1) (2008).
Cite as: 557 U. S. ____ (2009) 5
Opinion of the Court
when a parent unilaterally places in private school a child
who has not previously received special-education services
through the public school. Rather, such students “are
eligible for reimbursement, to the same extent as before
the 1997 amendments, as ‘appropriate’ relief pursuant to
§1415(i)(2)(C).” 523 F. 3d, at 1087–1088.
The Court of Appeals also rejected the District Court’s
analysis of the equities as resting on two legal errors.
First, because it found that §1412(a)(10)(C)(ii) generally
bars relief in these circumstances, the District Court
wrongly stated that relief was appropriate only if the
equities were sufficient to “ ‘override’ ” that statutory limi
tation. The District Court also erred in asserting that
reimbursement is limited to “ ‘extreme’ ” cases. Id., at 1088
(emphasis deleted). The Court of Appeals therefore re
manded with instructions to reexamine the equities, in
cluding the failure of respondent’s parents to notify the
School District before removing respondent from public
school. In dissent, Judge Rymer stated her view that
reimbursement is not available as an equitable remedy in
this case because respondent’s parents did not request an
IEP before removing him from public school and respon
dent’s right to a FAPE was therefore not at issue.
Because the Courts of Appeals that have considered this
question have reached inconsistent results,3 we granted
certiorari to determine whether §1412(a)(10)(C) estab
lishes a categorical bar to tuition reimbursement for stu
dents who have not previously received special-education
services under the authority of a public education agency.
——————
3 Compare Frank G. v. Board of Ed. of Hyde Park, 459 F.3d 356, 376
(CA2 2006) (holding that §1412(a)(10)(C)(ii) does not bar reimburse
ment for students who have not previously received public special
education services), and M. M. v. School Bd. of Miami-Dade Cty., Fla.,
437 F.3d 1085, 1099 (CA11 2006) (per curiam) (same), with Greenland
School Dist. v. Amy N., 358 F.3d 150, 159–160 (CA1 2004) (finding
reimbursement barred in those circumstances).
6 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
555 U. S. ___ (2009).4
II
Justice Rehnquist’s opinion for a unanimous Court in
Burlington provides the pertinent background for our
analysis of the question presented. In that case, respon
dent challenged the appropriateness of the IEP developed
for his child by public-school officials. The child had pre
viously received special-education services through the
public school. While administrative review was pending,
private specialists advised respondent that the child would
do best in a specialized private educational setting, and
respondent enrolled the child in private school without the
school district’s consent. The hearing officer concluded
that the IEP was not adequate to meet the child’s educa
tional needs and that the school district therefore failed to
provide the child a FAPE. Finding also that the private
school placement was appropriate under IDEA, the hear
ing officer ordered the school district to reimburse respon
dent for the cost of the private-school tuition.
We granted certiorari in Burlington to determine
whether IDEA authorizes reimbursement for the cost of
private education when a parent or guardian unilaterally
enrolls a child in private school because the public school
has proposed an inadequate IEP and thus failed to provide
a FAPE. The Act at that time made no express reference
to the possibility of reimbursement, but it authorized a
court to “grant such relief as the court determines is ap
propriate.” §1415(i)(2)(C)(iii).5 In determining the scope
——————
4 We previously granted certiorari to address this question in Board
of Ed. of City School Dist. of New York v. Tom F., 552 U.S. 1 (2007), in
which we affirmed without opinion the judgment of the Court of Ap
peals for the Second Circuit by an equally divided vote.
5 At the time we decided Burlington, that provision was codified at
§1415(e)(2). The 1997 Amendments renumbered the provision but did
not alter its text. For ease of reference, we refer to the provision by its
current section number, §1415(i)(2)(C)(iii).
Cite as: 557 U. S. ____ (2009) 7
Opinion of the Court
of the relief authorized, we noted that “the ordinary mean
ing of these words confers broad discretion on the court”
and that, absent any indication to the contrary, what relief
is “appropriate” must be determined in light of the Act’s
broad purpose of providing children with disabilities a
FAPE, including through publicly funded private-school
placements when necessary. 471 U. S., at 369. Accord
ingly, we held that the provision’s grant of authority in
cludes “the power to order school authorities to reimburse
parents for their expenditures on private special-education
services if the court ultimately determines that such place
ment, rather than a proposed IEP, is proper under the
Act.” Ibid.
Our decision rested in part on the fact that administra
tive and judicial review of a parent’s complaint often takes
years. We concluded that, having mandated that partici
pating States provide a FAPE for every student, Congress
could not have intended to require parents to either accept
an inadequate public-school education pending adjudica
tion of their claim or bear the cost of a private education if
the court ultimately determined that the private place
ment was proper under the Act. Id., at 370. Eight years
later, we unanimously reaffirmed the availability of reim
bursement in Florence County School Dist. Four v. Carter,
510 U.S. 7 (1993) (holding that reimbursement may be
appropriate even when a child is placed in a private school
that has not been approved by the State).
The dispute giving rise to the present litigation differs
from those in Burlington and Carter in that it concerns not
the adequacy of a proposed IEP but the School District’s
failure to provide an IEP at all. And, unlike respondent,
the children in those cases had previously received public
special-education services. These differences are insignifi
cant, however, because our analysis in the earlier cases
depended on the language and purpose of the Act and not
the particular facts involved. Moreover, when a child
8 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
requires special-education services, a school district’s
failure to propose an IEP of any kind is at least as serious
a violation of its responsibilities under IDEA as a failure
to provide an adequate IEP. It is thus clear that the
reasoning of Burlington and Carter applies equally to this
case. The only question is whether the 1997 Amendments
require a different result.
III
Congress enacted IDEA in 19706 to ensure that all
children with disabilities are provided “ ‘a free appropriate
public education which emphasizes special education and
related services designed to meet their unique needs [and]
to assure that the rights of [such] children and their par
ents or guardians are protected.’ ” Burlington, 471 U. S.,
at 367 (quoting 20 U.S. C. §1400(c) (1982 ed.), now codi
fied as amended at §§1400(d)(1)(A), (B)). After examining
the States’ progress under IDEA, Congress found in 1997
that substantial gains had been made in the area of spe
cial education but that more needed to be done to guaran
tee children with disabilities adequate access to appropri
ate services. See S. Rep. No. 105–17, p. 5 (1997). The
1997 Amendments were intended “to place greater em
phasis on improving student performance and ensuring
that children with disabilities receive a quality public
education.” Id., at 3.
Consistent with that goal, the Amendments preserved
the Act’s purpose of providing a FAPE to all children with
disabilities. And they did not change the text of the provi
sion we considered in Burlington, §1415(i)(2)(C)(iii), which
gives courts broad authority to grant “appropriate” relief,
including reimbursement for the cost of private special
——————
6 Thelegislation was enacted as the Education of the Handicapped
Act, title VI of Pub. L. 91–230, 84 Stat. 175, and was renamed the
Individuals with Disabilities Education Act in 1990, see §901(a)(3),
Pub. L. 101–476, 104 Stat. 1142.
Cite as: 557 U. S. ____ (2009) 9
Opinion of the Court
education when a school district fails to provide a FAPE.
“Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that inter
pretation when it re-enacts a statute without change.”
Lorillard v. Pons, 434 U.S. 575, 580 (1978). Accordingly,
absent a clear expression elsewhere in the Amendments of
Congress’ intent to repeal some portion of that provision or
to abrogate our decisions in Burlington and Carter, we will
continue to read §1415(i)(2)(C)(iii) to authorize the relief
respondent seeks.
The School District and the dissent argue that one of the
provisions enacted by the Amendments, §1412(a)(10)(C),
effects such a repeal. Section 1412(a)(10)(C) is entitled
“Payment for education of children enrolled in private
schools without consent of or referral by the public
agency,” and it sets forth a number of principles applicable
to public reimbursement for the costs of unilateral private
school placements. Section 1412(a)(10)(C)(i) states that
IDEA “does not require a local educational agency to pay
for the cost of education . . . of a child with a disability at a
private school or facility if that agency made a free appro
priate public education available to the child” and his
parents nevertheless elected to place him in a private
school. Section 1412(a)(10)(C)(ii) then provides that a
“court or hearing officer may require [a public] agency to
reimburse the parents for the cost of [private-school]
enrollment if the court or hearing officer finds that the
agency had not made a free appropriate public education
available” and the child has “previously received special
education and related services under the authority of [the]
agency.” Finally, §1412(a)(10)(C)(iii) discusses circum
stances under which the “cost of reimbursement described
in clause (ii) may be reduced or denied,” as when a parent
fails to give 10 days’ notice before removing a child from
public school or refuses to make a child available for
evaluation, and §1412(a)(10)(C)(iv) lists circumstances in
10 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
which a parent’s failure to give notice may or must be
excused.7
Looking primarily to clauses (i) and (ii), the School
District argues that Congress intended §1412(a)(10)(C) to
provide the exclusive source of authority for courts to
order reimbursement when parents unilaterally enroll a
child in private school. According to the District, clause (i)
provides a safe harbor for school districts that provide a
FAPE by foreclosing reimbursement in those circum
stances. Clause (ii) then sets forth the circumstance in
which reimbursement is appropriate—namely, when a
school district fails to provide a FAPE to a child who has
previously received special-education services through the
public school. The District contends that because
§1412(a)(10)(C) only discusses reimbursement for children
who have previously received special-education services
through the public school, IDEA only authorizes reim
bursement in that circumstance. The dissent agrees.
For several reasons, we find this argument unpersua
sive. First, the School District’s reading of the Act is not
supported by its text and context, as the 1997 Amend
ments do not expressly prohibit reimbursement under the
circumstances of this case, and the District offers no evi
dence that Congress intended to supersede our decisions
in Burlington and Carter. Clause (i)’s safe harbor explic
itly bars reimbursement only when a school district makes
a FAPE available by correctly identifying a child as having
a disability and proposing an IEP adequate to meet the
child’s needs. The clause says nothing about the availabil
ity of reimbursement when a school district fails to provide
a FAPE. Indeed, its statement that reimbursement is not
authorized when a school district provides a FAPE could
be read to indicate that reimbursement is authorized
——————
7 The full text of §1412(a)(10)(C) is set forth in the Appendix, infra,
at 18.
Cite as: 557 U. S. ____ (2009) 11
Opinion of the Court
when a school district does not fulfill that obligation.
Clause (ii) likewise does not support the District’s posi
tion. Because that clause is phrased permissively, stating
only that courts “may require” reimbursement in those
circumstances, it does not foreclose reimbursement
awards in other circumstances. Together with clauses (iii)
and (iv), clause (ii) is best read as elaborating on the gen
eral rule that courts may order reimbursement when a
school district fails to provide a FAPE by listing factors
that may affect a reimbursement award in the common
situation in which a school district has provided a child
with some special-education services and the child’s par
ents believe those services are inadequate. Referring as
they do to students who have previously received special
education services through a public school, clauses (ii)
through (iv) are premised on a history of cooperation and
together encourage school districts and parents to con
tinue to cooperate in developing and implementing an
appropriate IEP before resorting to a unilateral private
placement.8 The clauses of §1412(a)(10)(C) are thus best
read as elucidative rather than exhaustive. Cf. United
——————
8 The dissent asserts that, under this reading of the Act, “Congress
has called for reducing reimbursement only for the most deserving . . .
but provided no mechanism to reduce reimbursement to the least
deserving.” Post, at 6 (opinion of SOUTER, J.). In addition to making
unsubstantiated generalizations about the desert of parents whose
children have been denied public special-education services, the dissent
grossly mischaracterizes our view of §1412(a)(10)(C). The fact that
clause (iii) permits a court to reduce a reimbursement award when a
parent whose child has previously received special-education services
fails to give the school adequate notice of an intended private place
ment does not mean that it prohibits courts from similarly reducing the
amount of reimbursement when a parent whose child has not previ
ously received services fails to give such notice. Like clause (ii), clause
(iii) provides guidance regarding the appropriateness of relief in a
common factual scenario, and its instructions should not be understood
to preclude courts and hearing officers from considering similar factors
in other scenarios.
12 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
States v. Atlantic Research Corp., 551 U.S. 128, 137
(2007) (noting that statutory language may “perfor[m] a
significant function simply by clarifying” a provision’s
meaning).9
This reading of §1412(a)(10)(C) is necessary to avoid the
conclusion that Congress abrogated sub silentio our deci
sions in Burlington and Carter. In those cases, we con
strued §1415(i)(2)(C)(iii) to authorize reimbursement when
a school district fails to provide a FAPE and a child’s
private-school placement is appropriate, without regard to
the child’s prior receipt of services.10 It would take more
than Congress’ failure to comment on the category of cases
in which a child has not previously received special
education services for us to conclude that the Amendments
substantially superseded our decisions and in large part
——————
9 In arguing that §1412(a)(10)(C) is the exclusive source of authority
for granting reimbursement awards to parents who unilaterally place a
child in private school, the dissent neglects to explain that provision’s
failure to limit the type of private-school placements for which parents
may be reimbursed. School Comm. of Burlington v. Department of Ed.
of Mass. held that courts may grant reimbursement under
§1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE
and the private-school placement is appropriate. See 471 U.S. 359,
369 (1985); see Florence County School Dist. Four v. Carter, 510 U.S. 7,
12–13 (1993). The latter requirement is essential to ensuring that
reimbursement awards are granted only when such relief furthers the
purposes of the Act. See Burlington, 471 U. S., at 369. That
§1412(a)(10)(C) did not codify that requirement further indicates that
Congress did not intend that provision to supplant §1415(i)(2)(C)(iii) as
the sole authority on reimbursement awards but rather meant to
augment the latter provision and our decisions construing it.
10 As discussed above, although the children in Burlington and Carter
had previously received special-education services in public school, our
decisions in no way depended on their prior receipt of services. Those
holdings rested instead on the breadth of the authority conferred by
§1415(i)(2)(C)(iii), the interest in providing relief consistent with the
Act’s purpose, and the injustice that a contrary reading would produce,
see Burlington, 471 U. S., at 369–370; see also Carter, 510 U. S., at 12–
14—considerations that were not altered by the 1997 Amendments.
Cite as: 557 U. S. ____ (2009) 13
Opinion of the Court
repealed §1415(i)(2)(C)(iii). See Branch v. Smith, 538
U.S. 254, 273 (2003) (“[A]bsent a clearly expressed con
gressional intention, repeals by implication are not fa
vored” (internal quotation marks and citation omitted)).11
We accordingly adopt the reading of §1412(a)(10)(C) that
is consistent with those decisions.12
The School District’s reading of §1412(a)(10)(C) is also
at odds with the general remedial purpose underlying
IDEA and the 1997 Amendments. The express purpose of
the Act is to “ensure that all children with disabilities
have available to them a free appropriate public education
——————
11 For the same reason, we reject the District’s argument that because
§1412(a)(10)(C)(ii) authorizes “a court or a hearing officer” to award
reimbursement for private-school tuition, whereas §1415(i)(2)(C)(iii)
only provides a general grant of remedial authority to “court[s],” the
latter section cannot be read to authorize hearing officers to award
reimbursement. That argument ignores our decision in Burlington, 471
U. S., at 363, 370, which interpreted §1415(i)(2)(C)(iii) to authorize
hearing officers as well as courts to award reimbursement notwith
standing the provision’s silence with regard to hearing officers. When
Congress amended IDEA without altering the text of §1415(i)(2)(C)(iii),
it implicitly adopted that construction of the statute. See Lorillard v.
Pons, 434 U.S. 575, 580–581 (1978).
12 Looking to the Amendments’ legislative history for support, the
School District cites two House and Senate Reports that essentially
restate the text of §1412(a)(10)(C)(ii), H. R. Rep. No. 105–95, pp. 92–93
(1997); S. Rep. No. 105–17, p. 13 (1997), and a floor statement by
Representative Mike Castle, 143 Cong. Rec. 8013 (1997) (stating that
the “bill makes it harder for parents to unilaterally place a child in elite
private schools at public taxpayer expense, lowering costs to local
school districts”). Those ambiguous references do not undermine the
meaning that we discern from the statute’s language and context.
Notably, the agency charged with implementing IDEA has adopted
respondent’s reading of the statute. In commentary to regulations
implementing the 1997 Amendments, the Department of Education
stated that “hearing officers and courts retain their authority, recog
nized in Burlington . . . to award ‘appropriate’ relief if a public agency
has failed to provide FAPE, including reimbursement . . . in instances
in which the child has not yet received special education and related
services.” 64 Fed. Reg. 12602 (1999); see 71 Fed. Reg. 46599 (2006).
14 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
that emphasizes special education and related services
designed to meet their unique needs,” §1400(d)(1)(A)—a
factor we took into account in construing the scope of
§1415(i)(2)(C)(iii), see Burlington, 471 U. S., at 369. With
out the remedy respondent seeks, a “child’s right to a free
appropriate education . . . would be less than complete.”
Id., at 370. The District’s position similarly conflicts with
IDEA’s “child find” requirement, pursuant to which States
are obligated to “identif[y], locat[e], and evaluat[e]” “[a]ll
children with disabilities residing in the State” to ensure
that they receive needed special-education services.
§1412(a)(3)(A); see §1412(a)(10)(A)(ii). A reading of the
Act that left parents without an adequate remedy when a
school district unreasonably failed to identify a child with
disabilities would not comport with Congress’ acknowl
edgment of the paramount importance of properly identi
fying each child eligible for services.
Indeed, by immunizing a school district’s refusal to find
a child eligible for special-education services no matter
how compelling the child’s need, the School District’s
interpretation of §1412(a)(10)(C) would produce a rule
bordering on the irrational. It would be particularly
strange for the Act to provide a remedy, as all agree it
does, when a school district offers a child inadequate
special-education services but to leave parents without
relief in the more egregious situation in which the school
district unreasonably denies a child access to such services
altogether. That IDEA affords parents substantial proce
dural safeguards, including the right to challenge a school
district’s eligibility determination and obtain prospective
relief, see post, at 11, is no answer. We roundly rejected
that argument in Burlington, observing that the “review
process is ponderous” and therefore inadequate to ensure
that a school’s failure to provide a FAPE is remedied with
the speed necessary to avoid detriment to the child’s edu
cation. 471 U. S., at 370. Like Burlington, see ibid., this
Cite as: 557 U. S. ____ (2009) 15
Opinion of the Court
case vividly demonstrates the problem of delay, as respon
dent’s parents first sought a due process hearing in April
2003, and the District Court issued its decision in May
2005—almost a year after respondent graduated from
high school. The dissent all but ignores these shortcom
ings of IDEA’s procedural safeguards.
IV
The School District advances two additional arguments
for reading the Act to foreclose reimbursement in this
case. First, the District contends that because IDEA was
an exercise of Congress’ authority under the Spending
Clause, U. S. Const., Art. I, §8, cl. 1, any conditions at
tached to a State’s acceptance of funds must be stated
unambiguously. See Pennhurst State School and Hospital
v. Halderman, 451 U.S. 1, 17 (1981). Applying that prin
ciple, we held in Arlington Central School Dist. Bd. of Ed.
v. Murphy, 548 U.S. 291, 304 (2006), that IDEA’s fee
shifting provision, §1415(i)(3)(B), does not authorize courts
to award expert-services fees to prevailing parents in
IDEA actions because the Act does not put States on
notice of the possibility of such awards. But Arlington is
readily distinguishable from this case. In accepting IDEA
funding, States expressly agree to provide a FAPE to all
children with disabilities. See §1412(a)(1)(A). An order
awarding reimbursement of private-education costs when
a school district fails to provide a FAPE merely requires
the district “to belatedly pay expenses that it should have
paid all along.” Burlington, 471 U. S., at 370–371. And
States have in any event been on notice at least since our
decision in Burlington that IDEA authorizes courts to
order reimbursement of the costs of private special
education services in appropriate circumstances. Penn
hurst’s notice requirement is thus clearly satisfied.
Finally, the District urges that respondent’s reading of
the Act will impose a substantial financial burden on
16 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
public school districts and encourage parents to immedi
ately enroll their children in private school without first
endeavoring to cooperate with the school district. The
dissent echoes this concern. See post, at 10. For several
reasons, those fears are unfounded. Parents “are entitled
to reimbursement only if a federal court concludes both
that the public placement violated IDEA and the private
school placement was proper under the Act.” Carter, 510
U. S., at 15. And even then courts retain discretion to
reduce the amount of a reimbursement award if the equi
ties so warrant—for instance, if the parents failed to give
the school district adequate notice of their intent to enroll
the child in private school. In considering the equities,
courts should generally presume that public-school offi
cials are properly performing their obligations under
IDEA. See Schaffer v. Weast, 546 U.S. 49, 62–63 (2005)
(STEVENS, J., concurring). As a result of these criteria and
the fact that parents who “ ‘unilaterally change their
child’s placement during the pendency of review proceed
ings, without the consent of state or local school officials,
do so at their own financial risk,’ ” Carter, 510 U. S., at 15
(quoting Burlington, 471 U. S., at 373–374), the incidence
of private-school placement at public expense is quite
small, see Brief for National Disability Rights Network
et al. as Amici Curiae 13–14.
V
The IDEA Amendments of 1997 did not modify the text
of §1415(i)(2)(C)(iii), and we do not read §1412(a)(10)(C) to
alter that provision’s meaning. Consistent with our deci
sions in Burlington and Carter, we conclude that IDEA
authorizes reimbursement for the cost of private special
education services when a school district fails to provide a
FAPE and the private-school placement is appropriate,
regardless of whether the child previously received special
education or related services through the public school.
Cite as: 557 U. S. ____ (2009) 17
Opinion of the Court
When a court or hearing officer concludes that a school
district failed to provide a FAPE and the private place
ment was suitable, it must consider all relevant factors,
including the notice provided by the parents and the
school district’s opportunities for evaluating the child, in
determining whether reimbursement for some or all of the
cost of the child’s private education is warranted. As the
Court of Appeals noted, the District Court did not properly
consider the equities in this case and will need to under
take that analysis on remand. Accordingly, the judgment
of the Court of Appeals is affirmed.
It is so ordered.
18 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
Appendix to opinion of the Court
APPENDIX
Title 20 U.S. C. §1412(a)(10)(C) provides:
“(C) Payment for education of children enrolled in private
schools without consent of or referral by the public agency
“(i) In general
“Subject to subparagraph (A), this subchapter does
not require a local educational agency to pay for the cost
of education, including special education and related
services, of a child with a disability at a private school or
facility if that agency made a free appropriate public
education available to the child and the parents elected
to place the child in such private school or facility.
“(ii) Reimbursement for private school placement
“If the parents of a child with a disability, who previ
ously received special education and related services
under the authority of a public agency, enroll the child
in a private elementary school or secondary school with
out the consent of or referral by the public agency, a
court or a hearing officer may require the agency to re
imburse the parents for the cost of that enrollment if the
court or hearing officer finds that the agency had not
made a free appropriate public education available to
the child in a timely manner prior to that enrollment.
“(iii) Limitation on reimbursement
“The cost of reimbursement described in clause (ii)
may be reduced or denied—
“(I) if—
“(aa) at the most recent IEP meeting that the par
ents attended prior to removal of the child from the
public school, the parents did not inform the IEP
Team that they were rejecting the placement pro
posed by the public agency to provide a free appro
priate public education to their child, including stat
ing their concerns and their intent to enroll their
Cite as: 557 U. S. ____ (2009) 19
Opinion of the Court
Appendix to opinion of the Court
child in a private school at public expense; or
“(bb) 10 business days (including any holidays
that occur on a business day) prior to the removal of
the child from the public school, the parents did not
give written notice to the public agency of the in
formation described in item (aa);
“(II) if, prior to the parents’ removal of the child
from the public school, the public agency informed the
parents, through the notice requirements described in
section 1415(b)(3) of this title, of its intent to evaluate
the child (including a statement of the purpose of the
evaluation that was appropriate and reasonable), but
the parents did not make the child available for such
evaluation; or
“(III) upon a judicial finding of unreasonableness
with respect to actions taken by the parents.”
Cite as: 557 U. S. ____ (2009) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–305
_________________
FOREST GROVE SCHOOL DISTRICT, PETITIONER
v. T. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2009]
JUSTICE SOUTER, with whom JUSTICE SCALIA and
JUSTICE THOMAS join, dissenting.
I respectfully dissent.
School Comm. of Burlington v. Department of Ed. of
Mass., 471 U.S. 359 (1985), held that the Education of the
Handicapped Act, 84 Stat. 175, now known as the Indi
viduals with Disabilities Education Act (IDEA), 20 U.S. C.
§1400 et seq., authorized a district court to order reim
bursement of private school tuition and expenses to par
ents who took their disabled child from public school
because the school’s special education services did not
meet the child’s needs. We said that, for want of any
specific limitation, this remedy was within the general
authorization for courts to award “such relief as [they]
determin[e] is appropriate.” §1415(e)(2) (1982 ed.) (now
codified at §1415(i)(2)(C)(iii) (2006 ed.)). In 1997, however,
Congress amended the IDEA with a number of provisions
explicitly addressing the issue of “[p]ayment for education
of children enrolled in private schools without consent of
or referral by the public agency.” §1412(a)(10)(C). These
amendments generally prohibit reimbursement if the
school district made a “free appropriate public education”
(FAPE) available, §1412(a)(10)(C)(i), and if they are to
have any effect, there is no exception except by agreement,
§1412(a)(10)(B), or for a student who previously received
2 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
special education services that were inadequate,
§1412(a)(10)(C)(ii).
The majority says otherwise and holds that
§1412(a)(10)(C)(ii) places no limit on reimbursements for
private tuition. The Court does not find the provision
clear enough to affect the rule in Burlington, and it does
not believe Congress meant to limit public reimbursement
for unilaterally incurred private school tuition. But there
is no authority for a heightened standard before Congress
can alter a prior judicial interpretation of a statute, and
the assessment of congressional policy aims falls short of
trumping what seems to me to be the clear limitation
imposed by §1412(a)(10)(C)(ii).
I
In Burlington, parents of a child with a learning dis
ability tried for over eight years to work out a satisfactory
individualized education plan (IEP) for their son. 471
U. S., at 361–362. They eventually gave up and sent the
boy to a private school for disabled children, id., at 362,
and we took the ensuing case to decide whether the Edu
cation of the Handicapped Act authorized courts to order
reimbursement for private special education “if the court
ultimately determines that such placement, rather than a
proposed IEP, is proper under the Act,” id., at 369. After
noting various sections that “emphasiz[e] the participation
of the parents in developing the child’s [public] educa
tional program,” id., at 368, we inferred that the Act au
thorized reimbursement by providing that a district court
shall “ ‘grant such relief as [it] determines is appropriate,’ ”
id., at 369 (quoting what is now §1415(i)(2)(C)(iii); altera
tion in original). We emphasized that the Act did not
speak specifically to the issue of reimbursement, and held
that “[a]bsent other reference,” reimbursement for private
tuition and expenses would be an “ ‘appropriate’ ” remedy
Cite as: 557 U. S. ____ (2009) 3
SOUTER, J., dissenting
in light of the purposes of the Act. Id., at 369–370. In
short, we read the general provision for ordering equitable
remedies in §1415(i)(2)(C)(iii) as authorizing a reim
bursement order, in large part because Congress had not
spoken more specifically to the issue.
But Congress did speak explicitly when it amended the
IDEA in 1997. It first said that whenever the State or a
local educational agency refers a student to private special
education, the bill is a public expense. See 20 U.S. C.
§1412(a)(10)(B). It then included several clauses address
ing “[p]ayment for education of children enrolled in private
schools without consent of or referral by the public
agency.” §1412(a)(10)(C). The first contrasts with the
provision covering an agency referral:
“(i) In general
“. . . this subchapter does not require a local educa
tional agency to pay for the cost of education . . . of a
child with a disability at a private school or facility if
that agency made a free appropriate public education
available to the child and the parents elected to place
the child in such private school or facility.”
§1412(a)(10)(C).
The second clause covers the case in which the school
authority failed to make a FAPE available in its schools.
It does not, however, provide simply that the authority
must pay in this case, no matter what. Instead it provides
this:
“(ii) Reimbursement for private school placement
“If the parents of a child with a disability, who pre
viously received special education and related services
under the authority of a public agency, enroll the child
in a private elementary school or secondary school
without the consent of or referral by the public
agency, a court or a hearing officer may require the
4 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
agency to reimburse the parents for the cost of that
enrollment if the court or hearing officer finds that
the agency had not made a free appropriate public
education available to the child in a timely manner
prior to that enrollment.” §1412(a)(10)(C).
Two additional clauses spell out in some detail various
facts upon which the reimbursement described in clause
(ii) may be “reduced or denied.” See §§1412(a)(10)(C)(iii)
and (iv).
As a purely semantic matter, these provisions are am
biguous in their silence about the case with no previous
special education services and no FAPE available. As the
majority suggests, ante, at 10–11, clause (i) could theoreti
cally be understood to imply that reimbursement may be
ordered whenever a school district fails to provide a FAPE,
and clause (ii) could be read as merely taking care to
mention one of a variety of circumstances in which such
reimbursement is permitted. But this is overstretching.
When permissive language covers a special case, the natu
ral sense of it is taken to prohibit what it fails to author
ize. When a mother tells a boy that he may go out and
play after his homework is done, he knows what she
means.
So does anyone who reads the authorization of a reim
bursement order in the case of “a child with a disability,
who previously received special education and related
services under the authority of a public agency.”
§1412(a)(10)(C)(ii).1 If the mother did not mean that the
——————
1 Likewise,no one is unsure whether this Court’s Rule 18.6, which
states, “Within 30 days after the case is placed on this Court’s docket,
the appellee may file a motion to dismiss . . . ,” allows for a motion to
dismiss after 30 days. See also Carlisle v. United States, 517 U.S. 416,
431–32 (1996) (listing numerous examples of permissive statements,
such as then Federal Rule of Criminal Procedure 17(d)’s statement that
a subpoena “may be served” by a person “who is not less than 18 years
of age,” that plainly carry a restrictive meaning).
Cite as: 557 U. S. ____ (2009) 5
SOUTER, J., dissenting
homework had to be done, why did she mention it at all,
and if Congress did not mean to restrict reimbursement
authority by reference to previous receipt of services, why
did it even raise the subject? “[O]ne of the most basic
interpretive canons [is] that [a] statute should be con
strued so that effect is given to all its provisions, so that
no part will be inoperative or superfluous, void or insig
nificant . . . . ” Corley v. United States, 556 U.S. ___, ___
(2009) (slip op., at 9) (internal quotation marks omitted).
But not on the Court’s reading, under which clause (ii)
does nothing but describe a particular subset of cases
subject to remedial authority already given to courts by
§1415(i)(2)(C)(iii) and recognized in Burlington: a court
may order reimbursement for a child who previously
received special education related services, but it may do
this for any other child, too.2 But this is just not plausible,
the notion that Congress added a new provision to the
IDEA entitled “Reimbursement for private school place
ment” that had no effect whatsoever on reimbursement for
private school placement. I would read clause (i) as writ
ten on the assumption that the school authorities can be
expected to honor their obligations and as stating the
general rule that unilateral placement cannot be reim
bursed. See §1412(a)(10)(C)(i) (“In general . . . ”). And I
would read clause (ii) as imposing a receipt of prior ser
——————
2 The majority says that “clause (ii) is best read as elaborating on the
general rule that courts may order reimbursement when a school
district fails to provide a FAPE by listing factors that may affect a
reimbursement award in the common situation in which a school
district has provided a child with some special-education services and
the child’s parents believe those services are inadequate.” Ante, at 11.
But this is just another way of reading the provision off the books. On
the majority’s reading, clause (ii) states only that a court may award
reimbursement when (1) there is a previous receipt of special education
services and (2) a failure to provide a FAPE. Such a description of the
most common subset of a category already described may be called
elaboration, but it still has no effect on the statutory scheme.
6 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
vices limit on any exceptions to that general rule when
school officials fall short of providing a FAPE. See
§1412(a)(10)(C)(ii) (“Reimbursement for private school
placement . . . ”).
This reading can claim the virtue of avoiding a further
anomaly. Section 1412(a)(10)(C)(iii), which limits other
wise available reimbursement, is expressly directed to
“[t]he cost of reimbursement described in clause (ii).” This
makes perfect sense under my reading. Since clause (ii) is
now the exclusive source of authority to order reimburse
ment, it is natural to refer to it in the clause setting out
the conditions for reducing or even denying reimburse
ment otherwise authorized. Yet, as T. A. and the Gov
ernment concede, Brief for Respondent 22; Brief for
United States as Amicus Curiae 4, 17, under the major
ity’s reading, Congress has called for reducing reimburse
ment only for the most deserving (parents described in
clause (ii) who consult with the school district and give
public special education services a try before demanding
payment for private education), but provided no mecha
nism to reduce reimbursement to the least deserving
(parents who have not given public placement a chance).
The Court responds to this point by doubling down.
According to the majority, the criteria listed in clause (iii)
can justify a reduction not only of “reimbursement de
scribed in clause (ii),” §1412(a)(10)(C)(iii), but can also do
so for a reimbursement order authorized elsewhere as
well, ante, at 11 n. 8. That is, the majority avoids ascrib
ing perverse motives to Congress by concluding that in
both clause (ii) and clause (iii), Congress meant to add
nothing to the statutory scheme. This simply leads back
to the question of why Congress in §1412(a)(10)(C) would
have been so concerned with cases in which children had
not previously received special education services when,
on the majority’s reading, the prior receipt of services has
no relevance whatsoever to the subject of that provision.
Cite as: 557 U. S. ____ (2009) 7
SOUTER, J., dissenting
Because any other interpretation would render clause
(ii) pointless and clause (iii) either pointless or perverse,
§1412(a)(10)(C)(ii) must be read to allow reimbursement
only for “parents of a child with a disability, who previ
ously received special education and related services
under the authority of a public agency.”
II
Neither the majority’s clear statement rule nor its
policy considerations prevail over the better view of the
1997 Amendments.
A
The majority says that, because of our previous inter
pretation of the Act as authorizing reimbursement for
unilateral private placement, Congress was obliged to
speak with added clarity to alter the statute as so under
stood. Ante, at 8–12. The majority refers to two distinct
principles for support: first, statutes are to be read with a
presumption against implied repeals, e.g., ante, at 12–13
(citing Branch v. Smith, 538 U.S. 254, 273 (2003) (plural
ity opinion)), and second, congressional reenactment of
statutory text without change is deemed to ratify a prior
judicial interpretation of it, e.g., ante, at 8–9 (citing Loril
lard v. Pons, 434 U.S. 575, 580 (1978)). I think neither
principle is up to the task.
Section 1412(a)(10)(C) in no way repealed the provision
we considered in Burlington.3 The relief that “is appropri
ate” under §1415(i)(2)(C)(iii) depends on the substantive
provisions of the IDEA as surely as if the provision author
——————
3 The presumption against implied repeals would not justify reading
the later provision as useless even if it applied since, when two provi
sions are irreconcilable, the presumption against implied repeals gives
way to the later enactment. See Branch v. Smith, 538 U.S. 254, 273
(2003) (plurality opinion).
8 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
ized equitable relief “consistent with the provisions of this
statute.”4 When we applied §1415(i)(2)(C)(iii) in Burling
ton, we expressly referred to those provisions and con
cluded that, in the absence of a specific rule, “appropriate”
relief included the reimbursement sought. By introducing
new restrictions on reimbursement, the 1997 Amendments
produce a different conclusion about what relief is “appro
priate.” But §1415(i)(2)(C)(iii) remains in effect, just as it
would remain in effect if Congress had explicitly amended
the IDEA to prohibit reimbursement absent prior receipt
of services.
As for the rule that reenactment incorporates prior
interpretation, the Court’s reliance on it to preserve Bur
lington’s reading of §1415(i)(2)(C)(iii) faces two hurdles.
First, so far as I can tell, this maxim has never been used
to impose a clear statement rule. If Congress does not
suggest otherwise, reenacted statutory language retains
its old meaning; but when a new enactment includes
language undermining the prior reading, there is no pre
sumption favoring the old, and the only course open is
simply to read the revised statute as a whole. This is so
because there is no reason to distinguish between amend
ments that occur in a single clause (as if Congress had
placed all the changes in §1415(i)(2)(C)(iii)), and those that
take the form of a separate section (here, §1412(a)(10)(C)).
If Congress had added a caveat within §1415(i)(2)(C)(iii),
or in an immediately neighboring provision, I assume the
majority would not approach it with skepticism on the
ground that it purported to modify a prior judicial inter
pretation.
Second, nothing in my reading of §1412(a)(10)(C)(ii) is
——————
4 No
one, for example, would suggest that a court could grant reim
bursement under §1415(i)(2)(C)(iii) to parents of a nondisabled child,
but this is obvious only because we assume §1415(i)(2)(C)(iii) is to be
read in light of the substantive provisions of the statute.
Cite as: 557 U. S. ____ (2009) 9
SOUTER, J., dissenting
inconsistent with the holdings of Burlington and the other
prior decision on the subject, Florence County School Dist.
Four v. Carter, 510 U.S. 7 (1993). Our opinion in Burling
ton was expressly premised on there being no “other refer
ence” that would govern reimbursement for private tui
tion, 471 U. S., at 369, and this all but invited Congress to
provide one. Congress’s provision of such a reference in
1997 is, to say the very least, no reason for skepticism that
Congress wished to alter the law on reimbursement. The
1997 legislation, read my way, would not, however, alter
the result in either Burlington or Carter. In each case, the
school district had agreed that the child was disabled, the
parents had cooperated with the district and tried out an
IEP, and the only question was whether parents who later
resorted to a private school could be reimbursed “ ‘if the
court ultimately determines that such placement, rather
than a proposed IEP, is proper under the Act.’ ” Carter,
supra, at 12 (quoting Burlington, supra, at 369). In order
ing reimbursement, the Court in both Burlington and
Carter emphasized that the parents took part in devising
an IEP, 471 U. S., at 368; 510 U. S., at 12, and expressed
concern for parents who had sought an IEP before placing
their child in private school, but received one that was
inadequate, 471 U. S., at 370; 510 U. S., at 12. The result
in each case would have been the same under my reading
of the amended Act, both sets of parents being “parents of
a child with a disability, who previously received special
education and related services under the authority of a
public agency.” §1412(a)(10)(C)(ii). It is therefore too
much to suggest that my reading of §1412(a)(10)(C)(ii)
would “abrogat[e] sub silentio our decisions in Burlington
and Carter,” ante, at 12.
The majority argues that the policy concerns vindicated
in Burlington and Carter justify reading those cases to
authorize a reimbursement authority going beyond their
facts, ante, at 7–8, and would hold reimbursement possible
10 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
even for parents who, like those here, unilaterally resort
to a private school without first establishing at the admin
istrative or appellate level that the child is disabled, or
engaging in a collaborative process with the school offi
cials. But how broadly one should read Burlington and
Carter is beside the point, Congress having explicitly
addressed the subject with statutory language that pre
cludes the Court’s result today.
B
The Court also rejects the natural sense of
§1412(a)(10)(C) as an interpretation that would be “at
odds with the general remedial purpose underlying IDEA
and the 1997 Amendments.” Ante, at 13. The majority
thinks my reading would place the school authorities in
total control of parents’ eligibility for reimbursement: just
refuse any request for special education or services in the
public school, and the prior service condition for eligibility
under clause (ii) can never be satisfied. Thus, as the
majority puts it, it would “borde[r] on the irrational” to
“immuniz[e] a school district’s refusal to find a child eligi
ble for special-education services no matter how compel
ling the child’s need.” Ibid. I agree that any such scheme
would be pretty absurd, but there is no absurdity here.
The majority’s suggestion overlooks the terms of the IDEA
process, the substantial procedures protecting a child’s
substantive rights under the IDEA, and the significant
costs of its rule.
To start with the costs, special education can be im
mensely expensive, amounting to tens of billions of dollars
annually and as much as 20% of public schools’ general
operating budgets. See Brief for Council of the Great City
Schools as Amicus Curiae 22–23. The more private
placement there is, the higher the special education bill, a
fact that lends urgency to the IDEA’s mandate of a col
laborative process in which an IEP is “developed jointly by
Cite as: 557 U. S. ____ (2009) 11
SOUTER, J., dissenting
a school official qualified in special education, the child’s
teacher, the parents or guardian, and, where appropriate,
the child.” Burlington, supra, at 368.
The Act’s repeated emphasis on the need for cooperative
joint action by school and parent does not, however, leave
the school in control if officials should wish to block effec
tive (and expensive) action for the child’s benefit, for if the
collaborative approach breaks down, the IDEA provides
for quick review in a “due process hearing” of the parents’
claim that more services are needed to provide a FAPE
than the school is willing to give. See §1415(c)(2) (district
must respond to due process hearing complaint within 10
days and hearing officer must assess facial validity of
complaint within 5 days); §1415(e) (mediation is available,
provided it does not delay due process hearing);
§1415(f)(1)(B) (district must convene a meeting with par
ents within 15 days to attempt to resolve complaint); 34
CFR §§300.510(b)(1)–(2) (2008) (if complaint is not re
solved, a hearing must be held within 30 days of complaint
and a decision must be issued within 75 days of com
plaint). Parents who remain dissatisfied after these first
two levels of process may have a right of appeal to the
state educational agency and in any case may bring a
court action in federal district court. See 20 U.S. C.
§1415(i)(2). This scheme of administrative and judicial
review is the answer to the Court’s claim that reading the
prior services condition as restrictive, not illustrative,
immunizes a school district’s intransigence, giving it an
effective veto on reimbursement for private placement.5
——————
5 The majority argues that we already rejected this process as inade
quate in School Comm. of Burlington v. Department of Ed. of Mass., 471
U.S. 359 (1985). Ante, at 14. That was before the enactment of
§1412(a)(10)(C)(ii). The question in Burlington was whether the
reimbursement there was an “appropriate” remedy under
§1415(i)(2)(C)(iii). See 471 U. S., at 370. With no statement to the
contrary from Congress, the Court expressed concern over the possible
12 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
That said, the Court of course has a fair point that the
prior services condition qualifies the remedial objective of
the statute, and pursuing appeals to get a satisfactory IEP
with special services worth accepting could be discourag
ing. The child who needs help does not stop needing it, or
stop growing, while schools and parents argue back and
forth. But we have to decide this case on the premise that
most such arguments will be carried on in good faith, and
even on the assumption that disagreements about the
adequacy of IEPs will impose some burdens on the Act’s
intended beneficiaries, there is still a persuasive reason
for Congress to have written the statute to mandate just
what my interpretation requires. Given the burden of
private school placement, it makes good sense to require
parents to try to devise a satisfactory alternative within
the public schools, by taking part in the collaborative
process of developing an IEP that is the “modus operandi”
of the IDEA. Burlington, 471 U. S., at 368. And if some
time, and some educational opportunity, is lost in conse
quence, this only shows what we have realized before, that
no policy is ever pursued to the ultimate, single-minded
limit, and that “[t]he IDEA obviously does not seek to
promote [its] goals at the expense of all considerations,
including fiscal considerations,” Arlington Central School
Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 303 (2006).6
——————
length of the IDEA review process and surmised that Congress would
have intended for reimbursement to be authorized. Ibid. But Congress
provided a statement to the contrary in 1997; the only reading that
gives effect to §1412(a)(10)(C)(ii) is that reimbursement is not permit
ted absent prior placement, and the only question for the Court now is
whether Congress could have meant what it said.
6 See 143 Cong. Rec. 8013 (1997) (statement of Rep. Castle) (“This law
. . . has had unintended and costly consequences. . . . It has resulted in
school districts unnecessarily paying expensive private school tuition
for children. It has resulted in cases where lawyers have gamed the
system to the detriment of schools and children.” “This bill makes it
harder for parents to unilaterally place a child in elite private schools
at public taxpayer expense, lowering costs to local school districts”).