Forest Grove School v. T.A.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOREST GROVE SCHOOL DISTRICT,  No. 05-35641
Plaintiff-Appellee,
v.  D.C. No.
CV-04-00331-MO
T.A.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
March 11, 2008—Portland, Oregon
Filed April 28, 2008
Before: Pamela Ann Rymer, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Rymer
4537
4540 FOREST GROVE SCHOOL DIST. v. T.A.
COUNSEL
Mary E. Broadhurst, Mary E. Broadhurst, P.C., Eugene, Ore-
gon, for the defendant-appellant.
Andrea L. Hungerford and Richard G. Cohn-Lee, The
Hungerford Law Firm, LLP, Oregon City, Oregon, for the
plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant T.A., a former student of Plaintiff Forest Grove
School District, appeals the district court’s denial of reim-
bursement under the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400-1482, for his expenses in
attending a private school. We must decide whether a student
who never received special education and related services
from a school district nevertheless may recover reimburse-
ment for the costs of private school education. We conclude
that such a student is not barred as a matter of law from
receiving reimbursement. In the IDEA, Congress conferred
broad discretion on the courts to provide appropriate equitable
relief, including reimbursement for attendance at a private
school. Later amendments clarifying the relevant consider-
ations for those students who previously received special edu-
cation and related services do not apply to students, like T.A.,
who never received special education and related services.
Because the district court applied an improper legal frame-
work to T.A.’s claim for reimbursement under general princi-
ples of equity, we reverse and remand for reconsideration.
FACTUAL AND PROCEDURAL HISTORY
T.A. was born on September 11, 1985. He resided at all rel-
evant times in the Forest Grove School District. T.A. was
FOREST GROVE SCHOOL DIST. v. T.A. 4541
enrolled in the School District from kindergarten until the
spring semester of his junior year in high school, when his
parents removed him from public school and enrolled him in
a residential private school. Throughout his time in public
school, T.A. experienced difficulty paying attention in class
and completing his school work, but he successfully passed
from grade to grade due, in part, to extensive at-home help
from his parents and sister. T.A. never received special educa-
tion and related services from the School District.
During his time in public school, the School District evalu-
ated T.A. for a disability only once, in 2001. In December
2000, T.A.’s guidance counselor suspected that T.A. might
have a learning disability and referred him for an evaluation
for special education services. In internal meetings in early
2001, the School District’s staff discussed the possibility that
T.A. might have Attention Deficit Hyperactivity Disorder
(“ADHD”). The notes from a January 16, 2001, meeting state
“Maybe ADD/ADHD?” and the notes from a February 13,
2001, meeting mention “suspected ADHD.” T.A.’s parents
were neither present at the meetings nor informed of the
School District staff’s suspicion that T.A. might have ADHD.
T.A.’s parents did not request evaluation for ADHD, and T.A.
was evaluated only for a learning disability.1
Several psychologists and educational specialists examined
T.A. and administered tests throughout the first half of 2001.
On June 13, 2001, the team of specialists unanimously con-
cluded that T.A. did not have a learning disability and there-
fore was ineligible for special education. T.A.’s mother, who
attended the meeting, agreed with that determination. The
1
ADHD is classified as a mental disorder. A person with ADHD often
has symptoms similar to those experienced by a person with a learning
disability, but ADHD is a disorder distinct from learning disabilities. See
generally Nat’l Inst. of Mental Health, Attention Deficit Hyperactivity
Disorder (2006), available at http://www.nimh.nih.gov/publicat/adhd.cfm.
The evaluation of T.A. for a learning disability therefore did not encom-
pass an evaluation for ADHD.
4542 FOREST GROVE SCHOOL DIST. v. T.A.
school psychologist completed his report in September 2001,
stating that T.A. was not eligible for special education under
the IDEA on the basis of a learning disability, but “[p]ossible
504.”2 No one ever followed up on either the reference to
“[p]ossible 504” in the psychologist’s report or the references
to “suspected ADHD” in the School District’s staff meeting
notes.
At some point during 2002, T.A. began using marijuana. In
early 2003, his use became regular, and he exhibited notice-
able personality changes. On February 11, 2003, T.A. ran
away from home. The police brought him back a few days
later. T.A.’s parents took him to a psychologist and, eventu-
ally, to a hospital emergency room.
Dr. Fulop, a psychologist hired by T.A.’s parents, met with
T.A. a number of times in early 2003. Dr. Fulop held several
lengthy sessions immediately after T.A. ran away from home.
On March 15, 2003, Dr. Fulop diagnosed T.A. with ADHD,
depression, math disorder, and cannabis abuse. Dr. Fulop rec-
ommended a residential program for T.A. because of T.A.’s
failure to live up to his potential in school, his difficulties at
home, his attitude toward school, his sense of hopelessness,
and his drug problem.
In response to T.A.’s behavior, T.A.’s parents removed him
from the School District’s public high school and, in March
2003, sent him to a three-week program at Catherine Freer
Wilderness Therapy Expeditions. The discharge report written
by Freer’s staff identified T.A.’s primary diagnosis as canna-
bis dependence and his secondary diagnosis as depression.
Soon after T.A. completed the Freer Expedition, on March
24, 2003, his parents enrolled him in Mount Bachelor Acad-
2
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a),
gives certain rights to students with disabilities. This appeal concerns only
the IDEA.
FOREST GROVE SCHOOL DIST. v. T.A. 4543
emy, a residential private school that describes itself as “de-
signed for children who may have academic, behavioral,
emotional, or motivational problems.” Although T.A. com-
mitted a number of serious rule violations at Mount Bachelor
Academy, he graduated in June 2004. He also would have
graduated from public high school in 2004 had he remained
there.
On March 28, 2003, four days after enrolling T.A. at Mount
Bachelor Academy, T.A.’s parents hired a lawyer. On April
18, 2003, they requested a hearing pursuant to 20 U.S.C.
§ 1415(f) and sought (among other remedies) an order requir-
ing the School District to evaluate T.A. in all areas of sus-
pected disability. The Office of Administrative Hearings for
the State of Oregon initiated a hearing in May 2003, but the
assigned hearing officer continued the matter to allow the
School District to evaluate T.A.
During the summer months of 2003, several medical and
educational specialists from the School District evaluated
T.A. On July 7, 2003, a multi-disciplinary team of school offi-
cials convened to determine T.A.’s eligibility under the
IDEA. The team acknowledged T.A.’s learning difficulties,
his diagnosis of ADHD, and his depression, but a majority
found that T.A. did not qualify under the IDEA in the areas
of learning disability, ADHD, or depression, because those
diagnoses did not have a severe effect on T.A.’s educational
performance. On August 26, 2003, a similar team convened
and determined that T.A. was ineligible for services or
accommodations under § 504 of the Rehabilitation Act of
1973.
The administrative hearing then resumed in September
2003. Both parties submitted evidence. The evidence included
the extensive history recounted above. In addition, another
psychologist, Dr. Callum, examined T.A.’s records and testi-
fied at the hearing that T.A.’s ADHD “seems to be more of
a secondary, possibly, tertiary” cause of his difficulties. She
4544 FOREST GROVE SCHOOL DIST. v. T.A.
concluded that T.A. would be able to complete public high
school without any services beyond those given to all stu-
dents. She did state, however, that the references to the possi-
bility of ADHD in the meeting notes following the 2001
referral would have caused her to evaluate T.A. for ADHD.
On January 26, 2004, the Hearing Officer issued a lengthy
opinion that contained extensive findings of fact and conclu-
sions of law. She held that T.A. was disabled and therefore
eligible for special education under the IDEA and § 504 of the
Rehabilitation Act of 1973; that the School District had failed
to offer T.A. a free appropriate public education; that the
School District was not responsible for the costs of the Freer
Expedition or the evaluation by Dr. Fulop; but that the School
District was responsible for the costs of sending T.A. to
Mount Bachelor Academy. Monthly tuition at Mount Bache-
lor Academy was $5,200.
The School District appealed to the district court pursuant
to 20 U.S.C. § 1415(i), arguing that the Hearing Officer erred
by granting reimbursement for T.A.’s tuition at Mount Bache-
lor Academy.3 According to the School District, reimburse-
ment was unwarranted because T.A. unilaterally withdrew
from public school without providing prior notice to the
School District, he never received special education and
related services from the School District, and he withdrew for
reasons unrelated to his disability (that is, substance abuse and
behavioral problems).
The district court reversed the Hearing Officer’s grant of
reimbursement to T.A. The court adopted all of the Hearing
Officer’s findings of fact, but held that the Hearing Officer
had erred as a matter of law in granting private school reim-
bursement. The district court held that T.A. was statutorily
ineligible for reimbursement under 20 U.S.C.
3
T.A. did not cross-appeal the denial of reimbursement for the costs of
the Freer Expedition or the evaluation by Dr. Fulop.
FOREST GROVE SCHOOL DIST. v. T.A. 4545
§ 1412(a)(10)(C). The court also held that, “[e]ven assuming
that tuition reimbursement may be ordered . . . , under general
principles of equity . . . , the facts in this case do not support
such an exercise of equity.”
T.A. timely appealed to this court. This case was originally
scheduled for oral argument on May 9, 2007. On May 3, we
granted the parties’ joint motion to waive oral argument and,
at the same time, ordered supplemental briefing. On August
8, we referred the case to mediation and deferred submission
pending the Supreme Court’s decision in Frank G. v. Board
of Education, 459 F.3d 356 (2d Cir. 2006), petition for cert.
filed, 75 U.S.L.W. 3248 (U.S. Oct. 23, 2006) (No. 06-580),
cert. denied, 128 S. Ct. 436 (2007). On September 18, we
granted the parties’ joint motion to defer mediation until after
the Supreme Court’s resolution of a different Second Circuit
case addressing the same issue. See Bd. of Educ. v. Tom F.,
2005 WL 22866 (S.D.N.Y. 2005) (unpublished decision),
vacated, 193 F. App’x 26 (2d Cir. 2006) (unpublished deci-
sion) (summarily reversing the district court’s decision and
remanding in light of Frank G.), cert. granted, 127 S. Ct.
1393 (2007), aff’d, 128 S. Ct. 1 (2007) (per curiam).
On October 10, 2007, the Supreme Court affirmed without
opinion the Second Circuit’s decision in Tom F. by an equally
divided Court. 128 S. Ct. at 1. Justice Kennedy took no part
in the decision of the case. Id. at 2. The next week, the
Supreme Court denied certiorari in Frank G., 128 S. Ct. at
436, again with Justice Kennedy taking no part in the deci-
sion. Thereafter, the parties informed us that they were unable
to reach agreement through mediation, and we subsequently
heard oral argument and submitted the case.
STANDARDS OF REVIEW
We review de novo questions of law. Gregory K. v. Long-
view Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). We
therefore review de novo the legal question whether 20 U.S.C.
4546 FOREST GROVE SCHOOL DIST. v. T.A.
§ 1412(a)(10)(C) creates a categorical bar to reimbursement
of private school tuition for students who have not “previ-
ously received special education and related services.”
We review the district court’s factual findings for clear
error. Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d
884, 891 (9th Cir. 1995).
We review for abuse of discretion the district court’s deter-
mination under principles of equity to grant or deny reim-
bursement for private school tuition. The text of the IDEA
makes clear that the district court exercises its discretion in
fashioning appropriate relief:
In any action brought under this paragraph, the court
—
(i) shall receive the records of the administrative
proceedings;
(ii) shall hear additional evidence at the request of
a party; and
(iii) basing its decision on the preponderance of
the evidence, shall grant such relief as the court
determines is appropriate.
20 U.S.C. § 1415(i)(2)(C) (emphases added).4 The Supreme
Court has interpreted the emphasized provision as conferring
“broad discretion on the court.” See Sch. Comm. of Town of
Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985) (“The
statute directs the court to ‘grant such relief as [it] determines
is appropriate.’ The ordinary meaning of these words confers
broad discretion on the court.” (alteration in original)); see
4
Because the parties in this case did not present any new evidence
before the district court or request a further hearing, the district court’s
decision rested entirely on the administrative record.
FOREST GROVE SCHOOL DIST. v. T.A. 4547
also Burlington v. Dep’t of Educ., 736 F.2d 773, 801 (1st Cir.
1984) (holding that reimbursement is “a matter of equitable
relief, committed to the sound discretion of the district
court”), aff’d, 471 U.S. 359. In Florence County School Dis-
trict Four v. Carter ex rel. Carter, 510 U.S. 7 (1993), the
Court summarized:
[O]nce a court holds that the public placement vio-
lated IDEA, it is authorized to “grant such relief as
the court determines is appropriate.” 20 U.S.C.
§ 1415[(i)(2)(C)]. Under this provision, equitable
considerations are relevant in fashioning relief, and
the court enjoys broad discretion in so doing. Courts
fashioning discretionary equitable relief under IDEA
must consider all relevant factors . . . .
Id. at 15-16 (some citations and internal quotation marks omit-
ted).5
This court therefore has applied an abuse of discretion stan-
dard when reviewing a district court’s grant or denial of equi-
table relief. See Parents of Student W. v. Puyallup Sch. Dist.,
31 F.3d 1489, 1496 (9th Cir. 1994) (“The district court exer-
cised its discretion in denying this equitable remedy, and this
court reviews for abuse of that discretion.”); see also Park ex
rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025,
1033 (9th Cir. 2006) (per curiam) (“We review the Hearing
Officer’s and the district court’s award of compensatory edu-
cation services for abuse of discretion.” (citing Parents of Stu-
dent W., 31 F.3d at 1496)). Although we have not been
entirely consistent in applying a standard of review to the dis-
trict court’s grant or denial of an equitable remedy,6 no case
5
Congress has amended the IDEA several times such that the lettering,
but not the substance, of the subsections has changed. Throughout this
opinion, we alter the identifiers to reflect the present-day version of the
IDEA.
6
In several cases, we reviewed de novo the issue of reimbursement,
making an independent determination while giving appropriate deference
4548 FOREST GROVE SCHOOL DIST. v. T.A.
supports T.A.’s contention that we review the hearing offi-
cer’s decision for abuse of discretion.7 In any event, to the
extent that our cases are unclear, we reaffirm that the text of
the statute and Supreme Court precedent dictate that we
review for abuse of discretion the district court’s determina-
tion of appropriate equitable relief. “A district court by defini-
tion abuses its discretion when it makes an error of law.”
Koon v. United States, 518 U.S. 81, 100 (1996).
DISCUSSION
The IDEA was enacted “to ensure that all children with dis-
abilities have available to them a free appropriate public edu-
cation.” 20 U.S.C. § 1400(d)(1)(A). The Hearing Officer in
this case held that T.A. qualified as disabled under the IDEA
and that the School District had failed to offer him a free
appropriate public education. Those issues are not before us
on appeal.8 Instead, we must determine the availability, if any,
to the hearing officer’s findings. See, e.g., Ojai Unified Sch. Dist. v. Jack-
son, 4 F.3d 1467, 1479 (9th Cir. 1993); Ash v. Lake Oswego Sch. Dist.,
No. 7J, 980 F.2d 585, 589 (9th Cir. 1992); W.G. v. Bd. of Trs. of Target
Range Sch. Dist. No. 23, 960 F.2d 1479, 1486 (9th Cir. 1992), superseded
by statute on other grounds as recognized in R.B. ex rel. F.B. v. Napa Val-
ley Unified Sch. Dist., 496 F.3d 932, 938-39 (9th Cir. 2007). In other
cases, we did not articulate any standard at all, granting reimbursement
automatically after determining that the school district failed to provide a
free appropriate public education and that the student was placed in an
appropriate private school. See, e.g., Capistrano, 59 F.3d at 896-97; Union
Sch. Dist. v. Smith, 15 F.3d 1519, 1527 (9th Cir. 1994). It appears that, in
these latter cases, the school district did not argue that equitable consider-
ations weighed against reimbursement, so we had no reason to address the
question.
7
The hearing officer and the district court in Park reached the same con-
clusion, so we did not have to distinguish between the two conclusions.
The citation to Parents of Student W. suggests that we review for abuse
of discretion the district court’s decision only.
8
The School District argued before the district court that the Hearing
Officer erred as a matter of law by holding that T.A. was disabled for pur-
poses of the IDEA, but the district court did not reach the issue. Because
the School District did not renew its argument before this court, we also
do not address this question.
FOREST GROVE SCHOOL DIST. v. T.A. 4549
of private school reimbursement for a student, like T.A., who
never received special education and related services from a
school district.
T.A. concedes that, as the district court held, he does not
meet the statutory requirements under 20 U.S.C.
§ 1412(a)(10)(C), because he had not “previously received
special education and related services.” He argues that reim-
bursement is nevertheless available as a remedy under general
principles of equity pursuant to 20 U.S.C. § 1415(i)(2)(C).
T.A. further argues that the district court erred in its analysis
under general principles of equity. We will address each of
those two arguments in turn.
A. Private School Reimbursement Under 20 U.S.C.
§ 1412(a)(10)(C)
[1] Before 1997, the IDEA was silent on the subject of pri-
vate school reimbursement, but courts had granted such reim-
bursement as “appropriate” relief under principles of equity
pursuant to 20 U.S.C. § 1415(i)(2)(C). See Burlington, 471
U.S. at 370 (“[W]e are confident that by empowering the
court to grant ‘appropriate’ relief Congress meant to include
retroactive reimbursement to parents as an available remedy
in a proper case.”); 20 U.S.C. § 1415(i)(2)(C) (“In any action
brought under this paragraph, the court . . . shall grant such
relief as the court determines is appropriate.”). Congress
amended the IDEA in 1997 to include a new section entitled
“Payment for education of children enrolled in private schools
without consent of or referral by the public agency.” 20
U.S.C. § 1412(a)(10)(C). Clause (ii) of the new statutory sec-
tion states:
If the parents of a child with a disability, who pre-
viously received special education and related ser-
vices 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 pub-
4550 FOREST GROVE SCHOOL DIST. v. T.A.
lic agency, a court or a hearing officer may require
the 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 pub-
lic education available to the child in a timely man-
ner prior to that enrollment.
20 U.S.C. § 1412(a)(10)(C)(ii) (emphasis added). Clause (iii)
further states that “[t]he cost of reimbursement described in
clause (ii) may be reduced or denied” if certain requirements,
such as notice, are not met. Id. § 1412(a)(10)(C)(iii); see also
id. § 1412(a)(10)(C)(iv) (stating exceptions to the require-
ments in clause (iii)).
In this case, the Hearing Officer and district court found,
and neither party challenges, that T.A. never received special
education and related services from a public agency. Accord-
ingly, we must decide whether the reference in § 1412(a)
(10)(C) to students “who previously received special educa-
tion and related services” bars private school reimbursement
for students who have not “previously received special educa-
tion and related services,” or whether those students remain
eligible for private school reimbursement, as they were before
1997, under principles of equity pursuant to § 1415(i)(2)(C).
In other words, did Congress revoke, categorically, private
school reimbursement for students who have never received
special education and related services from a public agency,
or did Congress simply legislate concerning students who had
previously received special education and related services,
leaving discretion in cases such as T.A.’s in the hands of
courts applying principles of equity?
[2] We are not the first circuit court to have addressed this
question. In Frank G., 459 F.3d at 367-76, the Second Circuit
thoroughly analyzed the question and concluded that the ref-
erence in 20 U.S.C. § 1412(a)(10)(C)(ii) to students “who pre-
viously received special education and related services” does
not create a categorical bar to recovery of private school reim-
FOREST GROVE SCHOOL DIST. v. T.A. 4551
bursement for all other students. We agree with and adopt the
analysis and conclusion of the Second Circuit.
[3] The Second Circuit first examined the text of the stat-
ute. The court concluded that § 1412(a)(10)(C)(ii) is ambigu-
ous because its text does not clearly create a categorical bar
and because such an interpretation is in tension with the
broader context of the statute. Id. at 368-70. The Second Cir-
cuit then applied “traditional canons of statutory construction”
to the ambiguous text and reasoned that reading
§ 1412(a)(10)(C)(ii) to create a categorical bar “would defeat
both purposes of the IDEA,” which are to give children with
disabilities an appropriate and free education; would not
“produce[ ] a substantive effect that is compatible with the
rest of the law”; and would lead to “absurd results.” Id. at
370-72 (internal quotation marks omitted). Finally, the Sec-
ond Circuit noted that its interpretation was “consistent with
that of the [U.S.] Department of Education’s Office of Special
Education & Rehabilitative Services,” id. at 372-73,9 and held
9
The Second Circuit quotes a letter by the U.S. Department of Educa-
tion establishing its position that § 1412(a)(10)(C) does not “foreclos[e]
categorically an award of reimbursement in a case in which a child has not
yet been enrolled in special education and related services.” Frank G., 459
F.3d at 373 (quoting Letter to Susan Luger, listed in 65 Fed. Reg. 9178
(Feb. 23, 2000), and reprinted in 33 I.D.E.L.R. 126 (Mar. 19, 1999)). We
note that the Department of Education’s position was also set forth in the
Federal Register in response to comments concerning its regulations gov-
erning the IDEA:
[H]earing officers and courts retain their authority, recognized in
Burlington and Florence . . . to award “appropriate” relief if a
public agency has failed to provide FAPE [free appropriate pub-
lic education], including reimbursement and compensatory ser-
vices, under section [1415(i)(2)(C)(iii)] in instances in which the
child has not yet received special education and related services.
This authority is independent of their authority under section
[1412](a)(10)(C)(ii) to award reimbursement for private place-
ments of children who previously were receiving special educa-
tion and related services from a public agency.
64 Fed. Reg. 12,406-01, 12,602 (Mar. 12, 1999).
4552 FOREST GROVE SCHOOL DIST. v. T.A.
that neither the ambiguous legislative history of
§ 1412(a)(10)(C)(ii) nor the First Circuit’s decision in Green-
land School District v. Amy N., 358 F.3d 150 (1st Cir. 2004),
altered its conclusion. Frank G., 459 F.3d at 373-76.
[4] We see no reason to disagree with the Second Circuit’s
well-reasoned analysis of this issue. We emphasize in particu-
lar that the express purpose of the IDEA is “to ensure that all
children with disabilities have available to them a free appro-
priate public education.” 20 U.S.C. § 1400(d)(1)(A) (empha-
sis added); see also Burlington, 471 U.S. at 369-70
(emphasizing this purpose).10 Interpreting the 1997 amend-
ments to prohibit categorically reimbursement to students
who have not yet received special education and related ser-
vices runs contrary to this express purpose. Additionally, it
would lead to the absurd result that the parents of a child with
a disability must wait (an indefinite, perhaps lengthy period)
until the child has received special education in public school
before sending the child to an appropriate private school, no
matter how uncooperative the school district and no matter
how inappropriate the special education. Further, if the school
district declined to recognize a student as disabled—as
occurred in this case—the student would never receive special
education in public school and therefore would never be eligi-
ble for reimbursement under § 1412(a)(10)(C)(ii). “The Act
was intended to give handicapped children both an appropri-
ate education and a free one; it should not be interpreted to
defeat one or the other of those objectives.” Burlington, 471
U.S. at 372.
10
The dissent asserts that a “FAPE was not at issue” when T.A.’s par-
ents removed him from public school. Dissent at 4558. But the Hearing
Officer found that T.A. was disabled and that the School District failed to
provide a FAPE. The district court adopted all of the Hearing Officer’s
factual findings, and the School District has not appealed any of those
findings. T.A.’s parents also provided notice to the School District before
T.A.’s final year of school. On this record, therefore, we must take as a
given that T.A. was disabled and that the School District failed to provide
a FAPE.
FOREST GROVE SCHOOL DIST. v. T.A. 4553
In amending the IDEA in 1997, Congress chose to specify
in § 1412(a)(10)(C) the requirements and factors to be consid-
ered by district courts and hearing officers when deciding
whether to award reimbursement to students who previously
received special education and related services. For students
who never received special education and related services,
however, the new provisions of § 1412(a)(10)(C) simply do
not apply. For those students, reimbursement may be sought
only under principles of equity pursuant to § 1415(i)(2)(C).
Because T.A. never received special education and related
services, § 1412(a)(10)(C) does not apply in this case.11 He
may recover reimbursement, if at all, only under principles of
equity pursuant to § 1415(i)(2)(C).
[5] In conclusion, we hold that students who have not “pre-
viously received special education and related services” are
eligible for reimbursement, to the same extent as before the
1997 amendments, as “appropriate” relief pursuant to
§ 1415(i)(2)(C).12 The statutory requirements of § 1412(a)
(10)(C) do not apply. We therefore reverse the district court’s
holding that T.A.’s failure to meet the requirements of
§ 1412(a)(10)(C) prevents private school reimbursement as a
matter of law, and turn to the district court’s alternative hold-
ing that T.A. was not entitled to reimbursement under general
principles of equity.
B. Private School Reimbursement Under Principles of
Equity Pursuant to 20 U.S.C. § 1415(i)(2)(C)
[6] “Parents have an equitable right to reimbursement for
11
Therefore, we express no opinion on the requirements for reimburse-
ment under § 1412(a)(10)(C) for students who have received special edu-
cation and related services.
12
Given our clear statement that such students are eligible “to the same
extent as before the 1997 amendments,” we are puzzled by the dissent’s
unsupported assertion that our opinion “expand[s] the principle” of equita-
ble reimbursement. Dissent at 4557.
4554 FOREST GROVE SCHOOL DIST. v. T.A.
the cost of providing an appropriate education when a school
district has failed to offer a child a [free appropriate public
education]. The conduct of both parties must be reviewed to
determine whether relief is appropriate.” W.G., 960 F.2d at
1485-86 (citation omitted). The district court exercises its dis-
cretion in granting or denying appropriate equitable relief
under § 1415(i)(2)(C), and we may reverse only if the district
court has abused that discretion. We hold that the district
court in this case abused its discretion in denying private
school reimbursement to T.A., because the district court made
two distinct legal errors in its discussion of the relevant equi-
table considerations. We therefore reverse the district court’s
denial of private school reimbursement and remand for con-
sideration of T.A.’s claim under the proper legal framework.
[7] First, the district court erred by considering the
§ 1412(a)(10)(C) statutory requirements in its analysis under
principles of equity. In particular, the district court found that
the equitable considerations in favor of granting reimburse-
ment did not “override the statutory requirements for tuition
reimbursement.” As discussed above, there are no statutory
requirements for tuition reimbursement for students, like
T.A., who never received special education and related ser-
vices in public school. Congress’ choice to legislate concern-
ing students who previously received special education and
related services did not alter the proper analysis for students
who have not received special education and related services
in public school, under general principles of equity pursuant
to § 1415(i)(2)(C).
[8] Second, the district court applied the wrong legal stan-
dard by asserting that “tuition reimbursement may be ordered
in an extreme case for a student not receiving special educa-
tion services.” (Emphasis added.) The court cited Greenland,
358 F.3d at 160 n.8, for that proposition, not having the bene-
fit of our opinion today, which rejects Greenland in favor of
the Second Circuit’s approach. Nothing in § 1415(i)(2)(C),
Supreme Court precedent, or our own precedent suggests that
FOREST GROVE SCHOOL DIST. v. T.A. 4555
tuition reimbursement is available only in extreme cases for
parents who place their child in private school before receiv-
ing special education and related services in public school.
[9] In summary, the district court erroneously considered
the inapplicable statutory requirements of § 1412(a)(10)(C)
and applied an incorrect legal standard. We therefore reverse
the district court’s denial of reimbursement and remand for
reconsideration consistent with this opinion.
On remand, the district court should consider all relevant
factors in determining whether to grant reimbursement and
the amount of the reimbursement, including those factors that
we have identified in the past. For example, we have previ-
ously recognized that notice to the school district is a relevant
equitable consideration. In Ash, the disabled student attended
private school beginning in 1983, but his parents did not pro-
vide meaningful notice to the school district until 1989. Ash
v. Lake Oswego Sch. Dist. No. 7J, 766 F. Supp. 852, 853-55,
864 (D. Or. 1991); see also Ash, 980 F.2d at 586 (incorporat-
ing the district court’s account of the facts). In response to the
parents’ 1989 request, the school district offered to provide
certain special education services, Ash, 766 F. Supp. at 855,
but the district court found that the offered services were inad-
equate to meet the student’s educational needs, id. at 863. The
district court awarded reimbursement beginning in 1989, but
rejected the parents’ claim that private school reimbursement
should be given for the whole period beginning in 1983. Id.
at 864. We affirmed the district court’s conclusion that reim-
bursement was warranted only beginning in 1989, after “ ‘[the
school district] had been asked to provide services to [the stu-
dent] and had been given a reasonable opportunity to com-
plete the process of evaluating [the student] and making a
placement recommendation.’ ” Ash, 980 F.2d at 589 (quoting
Ash, 766 F. Supp. at 864).
In this case, T.A.’s parents did not notify the School Dis-
trict before removing T.A. from public school. Instead,
4556 FOREST GROVE SCHOOL DIST. v. T.A.
shortly after enrolling T.A. in private school, T.A.’s parents
notified the School District, attended several meetings with
school officials, and made T.A. available for evaluation. At
the conclusion of its evaluation in July 2003, the School Dis-
trict nevertheless concluded that T.A. was not disabled and
therefore declined to offer him special education services
under the IDEA. In other words, after “[the School District]
had been asked to provide services to [T.A.] and had been
given a reasonable opportunity to complete the process of
evaluating [T.A.] and making a placement recommendation,”
id. (internal quotation marks omitted), the School District still
failed to recognize T.A. as disabled or to offer him a free
appropriate education. Thus, the district court would be within
its discretion to consider notice as a relevant factor in its reim-
bursement determination.
Additionally, as we have noted in other cases, “[f]actors to
be considered [by the district court] include[ ] the existence of
other, more suitable placements, the effort expended by the
parent[s] in securing alternative placements[,] and the general
cooperative or uncooperative position of the school district.”
W.G., 960 F.2d at 1487 (internal quotation marks omitted);
accord Adams v. Oregon, 195 F.3d 1141, 1151 (9th Cir.
1999); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ.,
790 F.2d 1153, 1161 (5th Cir. 1986). We are mindful that the
Hearing Officer found that T.A.’s parents sent him to Mount
Bachelor Academy not only because of his disabilities, but
also for reasons unrelated to his disabilities (i.e., substance
abuse and behavioral problems), and the district court would
be acting within its discretion to consider that factor as well.
REVERSED and REMANDED.
FOREST GROVE SCHOOL DIST. v. T.A. 4557
RYMER, Circuit Judge, dissenting:
I part company because I don’t believe this is a Burlington1
case calling for equitable reimbursement, or that we should
adopt the reasoning of the Second Circuit in Frank G. v.
Board of Education of Hyde Park, 459 F.3d 356 (2d Cir.
2006).
I read Burlington, Florence County School District Four v.
Carter, 510 U.S. 7 (1993), 20 U.S.C. § 1412(a)(10)(C), and
the regulations,2 as indicating that tuition reimbursement for
unilateral private placements is available under principles of
equity only when FAPE was at issue before the child was
withdrawn from public school and the school district had
improperly denied a free and appropriate education. This was
true in each of these cases, yet is not true here. Even if Con-
gress meant the 1997 amendments to preserve equitable reim-
bursement where the child has never been enrolled in special
education and related services, I doubt that it intended to
expand the principle. At most, it seems to me, § 1415(i)(2)(C)
carries forward the pre-1997 law on equitable relief. And as
I see it, this case does not fall within the Burlington heartland
because FAPE was not at issue when T.A.’s parents unilater-
ally withdrew him from the public sector.
In 2001, while T.A. was in public school, T.A.’s mother
explicitly agreed with the school district’s assessment that
T.A. was not eligible for special education services. T.A. was
taken out of public school and enrolled in a three-week wil-
derness program because he had begun to binge on marijuana
and had run away from home in early 2003. No Independent
Education Plan (IEP) had been requested, proposed, or dis-
puted before then. Likewise, no IEP was on the table prior to
1
Burlington Sch. Comm. v. Mass. Dep’t of Educ., 471 U.S. 359 (1985).
2
See 34 C.F.R. § 300.403 (1999) (“Placement of children by parents if
FAPE is at issue”); 34 C.F.R. § 300.148 (2006) (“Placement of children
by parents when FAPE is at issue”).
4558 FOREST GROVE SCHOOL DIST. v. T.A.
T.A.’s enrollment at Mt. Bachelor Academy. Thus, unlike “all
Burlington reimbursement cases,” where “the parents’ rejec-
tion of the school district’s proposed IEP is the very reason
for the parents’ decision to put their child in a private school,”
Carter, 510 U.S. at 13, T.A.’s parents decided to put him in
a private school for reasons of their own. Accordingly, T.A.’s
parents have no right to equitable, retroactive reimbursement
for private placement expenses.
This squares with the statutory scheme as well. If FAPE
were not at issue and T.A. was not receiving special education
and related services before withdrawal from public school,
then he was being provided a free appropriate public educa-
tion. A local educational agency that has made a free appro-
priate public education available has no obligation to pay the
cost of education (including special education and related ser-
vices) of a child with a disability at a private school when the
parents elect the private placement. 20 U.S.C. § 1412(a)(10)
(C)(i). However, if a child has previously received special
education and related services, costs of a private placement
may be reimbursed if a court or hearing officer finds that the
school district had not made a free appropriate public educa-
tion available to the child in a timely manner prior to the pri-
vate enrollment. Id. § 1412(a)(10)(C)(ii).3
That FAPE was not at issue before T.A. was withdrawn
also distances this case from Frank G., upon which the major-
ity relies, for there the school district had prepared an IEP
with which the parents were dissatisfied at the time of the pri-
vate placement. This case is far closer factually to Greenland
School District v. Amy N., 358 F.3d 150 (1st Cir. 2004),
3
In the latter situation, the cost of reimbursement may be reduced or
denied if the parents at the latest IEP meeting failed to tell the IEP team
they were rejecting the public agency’s proposed placement, or the parents
had not given 10 days notice to the district prior to removal; the parents
didn’t cooperate; or the parents’ actions are found to be unreasonable. Id.
§ 1412(a)(10)(C)(iii).
 FOREST GROVE SCHOOL DIST. v. T.A. 4559
where — as here — FAPE was not at issue when the child’s
parents unilaterally removed her from public school. If it were
necessary to choose between Frank G. and Greenland, Green-
land is the more analogous precedent. But even on the majori-
ty’s take, it seems unnecessary to me to embrace (or reject)
the rationale of either case to resolve T.A.’s appeal. The court
could simply hold, consistent with our precedent in Ash, that
the ball game changed once a due process hearing was
requested. See Ash v. Lake Oswego Sch. Dist., 980 F.2d 585,
589 (9th Cir. 1992) (recognizing right to reimbursement after
the school district was first asked to provide services and had
been given a reasonable opportunity to complete the process
of evaluating the child and making a placement recommenda-
tion).4
This said, assuming that equitable principles extend to this
situation, I do not understand the court’s opinion to compel a
finding of reimbursement on remand. T.A. was unilaterally
pulled from public school and placed in private school on
account of drug issues, not learning disabilities; the parents
receded from their position that T.A. was not entitled to spe-
cial education services only after voluntarily placing him in
private school and consulting an attorney; and there is no evi-
dence of any change in T.A.’s need for special education ser-
vices in the meantime. In these circumstances, the district
4
It is unclear to me whether a right to an IEP arose at that time given
the district’s “child find” obligations, see, e.g., § 1412(a)(10)(A)(ii),
because the issue was not briefed in these terms. But whatever the effect,
it seems plausible that the case at that point would be on a different track
from the one taken here because by then, T.A. was voluntarily in private
school, entirely at the parents’ initiative, without involvement of the
school district and without FAPE being at issue. Otherwise, there would
be no point to the distinctions drawn in the statute between children
enrolled in private schools by their parents without consent of, or referral
by, the school district and those placed in private schools by public agen-
cies, see §§ 1412(a)(10)(A), (B), and (C); or to the requirements and limi-
tations set forth in § 1412(a)(10)(C) with respect to the payment of costs
for education of children placed in private schools without district involve-
ment.
4560 FOREST GROVE SCHOOL DIST. v. T.A.
court may well find again that T.A.’s parents assumed the
financial risk of their own decision and that reimbursement is
not “appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii).