School district ordered to pay for pot-smoking student’s private school
By Linda Bentley | January 28, 2009
U.S. Supreme Court grants school district’s petition for review
WASHINGTON, D.C. – During its Jan. 16 conference, the U.S. Supreme Court granted the petition for a writ of certiorari filed by the Forest Grove School District (FGSD) against a student identified as T.A.
FGSD, located in Forest Grove, Ore., petitioned the high court after the Ninth Circuit Court of Appeals, in a non-unanimous decision, overturned U.S. District Court Judge Michael W. Mosman’s ruling that FGSD was not responsible for reimbursing T.A.’s private school tuition under the Individuals with Disabilities Education Act (IDEA) since T.A. never received special education and related services from FGSD.
The Ninth Circuit panel concluded such a student is not barred as a matter of law from receiving reimbursement.
This case involves T.A., now 22, when he was enrolled in the FGSD from kindergarten until the spring semester of his junior year in high school, when his parents removed him from public school to enroll him in a residential private school.
Throughout his time in public school, T.A. successfully passed from grade to grade.
T.A. was assessed for disability in 2001 when a guidance counselor suspected he might have a learning disability and referred him for an evaluation for special education services.
The notes from a Jan. 16, 2001 internal district staff meeting stated T.A. might have Attention Deficit Disorder (ADD) or Attention Deficit Hyperactivity Disorder (ADHD). One month later, meeting notes mention “suspected ADHD.”
T.A.’s parents had not requested evaluation for ADHD and T.A. was only being evaluated for a learning disability. And, following exam-ination by several psychologists and educational specialists and tests administered throughout the first half of 2001, the team of specialists unanimously con-cluded on June 13, 2001, T.A. did not have a learning disability and was therefore ineligible for special education.
T.A’s mother was present at that meeting and agreed with their determination.
The Ninth Circuit noted ADHD is classified as a mental disorder and persons with ADHD often have symptoms similar to those experienced by persons with learning disabilities and stated, “ADHD is a disorder distinct from learning disabilities.”
Because the evaluation of T.A. was for a learning disability, it did not include an evaluation for ADHD.
In September 2001, the school psychologist completed his report, finding T.A. was not eligible for special education under the IDEA on the basis of a learning disability.
Court records state, “At some point during 2002, T.A. began using marijuana. In 2003, his use became regular and he exhibited noticeable personality changes. On Feb. 11, 2003, T.A. ran away from home. The police brought him back a few days later.”
Dr. Fulop, hired by T.A.’s parents, met with T.A. on a number of occasions and in March 2003, he diagnosed T.A. as having “ADHD, depression, math disorder and cannabis abuse,” and recommended placement in a residential program due to his “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.”
T.A.’s parents responded by removing him from the district’s public high school and enrolling him in a three-week program at Catherine Freer Wilderness Therapy Expeditions.
T.A.’s discharge report, written by Freer’s staff, stated cannabis dependence as a primary diagnosis with a secondary diagnosis as depression.
Shortly after T.A. completed the Freer program in late March, his parents enrolled him in Mount Bachelor Academy, a private boarding school designed for children with “academic, behavioral or motivational problems.”
T.A. graduated from Mount Bachelor in June 2004, the same time he would have graduated from FGSD had he remained enrolled.
In 2003, T.A.’s parents hired a lawyer and were scheduled for a hearing initiated by the Oregon Office of Administrative Hearings.
In July 2003, a multi-disciplinary team convened to determine T.A.’s eligibility under the IDEA. While they acknowledged T.A.’s learning difficulties, diagnosis of ADHD and depression, they concluded those diagnoses did not have a severe effect on his educational performance.
In August 2003 a similar team convened and determined T.A. was also ineligible for services or accommodations under Section 504 of the Rehabilitation Act of 1973, which gives certain rights to students with disabilities.
On Jan. 26, 2004, the hearing officer concluded T.A. was disabled, FGSD failed to offer T.A. a “free appropriate public education” and therefore found him eligible for special education under IDEA and Section 504 of the Rehabilitation Act of 1973.
Although the hearing officer did not find the district responsible for the costs of the Freer Expedition or Dr. Fulop’s evaluation, she did find the FGSD responsible for the costs associated with T.A.’s enrollment at Mount Bachelor. Tuition at Mount Bachelor was $5,200 per month.
FGSD appealed the hearing officer’s decision to U.S. District Court, which overturned the hearing officer’s decision to grant reimbursement for T.A.’s boarding school tuition, citing reimbursement was unwarranted because T.A. withdrew from the school district for substance abuse and behavioral problems, reasons unrelated to his disability.
Although the district court adopted all of the hearing officers findings of facts, it held the hearing officer erred as matter of law in granting private school private school reimbursement and “the facts in this case do not support such an exercise of equity.”
T.A.’s parents appealed to the Ninth Circuit, which reversed the district court’s decision that T.A. was not entitled to reimbursement and concluded the school district failed to offer T.A. a free and appropriate education.
Judge Pamela Ann Rymer parted company in dissent and stated, “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 wilderness 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 disputed before then.”
Stating she did not understand the court’s opinion to compel a finding of reimbursement on remand, Rymer said, “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 special education services only after voluntarily placing him in private school and consulting an attorney; and there is no evidence of any change in T.A.’s need for special education services in the meantime.”
The U.S. Supreme Court will now decide and has set a briefing schedule to review the case.