OLR Research Report

May 21, 2008




By: Judith Lohman, Chief Analyst

You asked (1) what impact is on Connecticut school districts of the U.S. Supreme Court decision in Board of Education of the City of New York v. Tom F., a special education case and (2) whether parents, after consulting with the local school district and assessing the school district's individualized education program (IEP) for their child eligible for special education, may place the child in the private school of their choice at the school district's expense without first enrolling him or her in public school.


The Tom F. case raises the issue of whether a child has to receive special education services in a public school before his or her parents can win reimbursement for the cost of placing the child in a private school. Because the U.S. Supreme Court failed to decide the case, the 2nd Circuit Court of Appeals ruling stands. The appeals court found that there is no requirement that a child receive special education services in public school before his parent may place him in an appropriate private school at public expense.

The case dealt with a father, Tom F., who rejected the New York City school system's IEP proposing a public school placement for his learning disabled son and instead chose to send him to a private school that specializes in teaching children with learning disabilities. He sought reimbursement from the school system under the federal special education law for the private school tuition costs. His son never attended public school or received special education from the New York public school system.

State hearing officers upheld the reimbursement, but the U.S. district court ruled that the federal special education law bars private school tuition reimbursement for a child who had not attended public school. The 2nd Circuit Court of Appeals reversed the district court ruling and found that Tom F. was entitled to reimbursement. The U.S. Supreme Court heard oral arguments on the case, but because Justice Kennedy disqualified himself and the remaining eight justices deadlocked, the appeals court ruling stands. Connecticut is in the 2nd Circuit so even though that court's decision does not set a national precedent, it applies to Connecticut school districts.

The impact on Connecticut school districts depends on the specific cases each district confronts. Despite the ruling, before parents can receive reimbursement for a unilateral private placement, federal law requires that (1) the school district fail to provide an appropriate program for the student in a timely fashion, (2) the private placement be appropriate for the child, (3) the parents give the school district written notice of their objections to the district placement and that they intends to place their child in private school and seek reimbursement, (4) the parents make his child available for evaluation by the school district, and (5) the parents' actions not be unreasonable.


The federal special education law (the Individuals with Disabilities Education Act – IDEA), among other things, requires school districts to provide a “free and appropriate public education” (FAPE) for eligible children with disabilities. Federal law defines FAPE as special education and related services that:

1. are provided at public expense, under public supervision and direction, and without charge;

2. meet the standards of the state educational agency (in Connecticut, the State Department of Education);

3. include an appropriate preschool and elementary and secondary school education in the state; and

4. are provided according to an individualized education program established for each eligible child (20 USC 1401 (a) (18)).

Under the federal law, if a school district does not provide FAPE for a child in a timely manner, the child's parents may unilaterally (i.e., without the consent of or referral from the school district) place him in an appropriate private school and seek reimbursement of the cost from the school district. If the district refuses to reimburse the parents, special education hearing officers and courts may order it to do so if they find that (1) the educational placement the school district offered was not appropriate for the child and (2) the parents meet certain conditions.


The issue raised in Tom F. was whether parents may win school district reimbursement for the cost of a unilateral private placement for their child when the child never attended public school.

The case involved Gilbert Freston, a child identified by the New York City school system as eligible for special education because of attention deficit hyperactivity disorder (ADHD) and other learning disabilities. Gilbert was first evaluated by the New York City school system in 1996 at the age of six at which time the system developed an IEP for him. His father, Thomas Freston, who became wealthy as a co-founder of the MTV cable channel and a former executive of Viacom, Inc., considered the IEP inappropriate and enrolled his son in a Manhattan private school specializing in teaching children with learning disabilities. He sought reimbursement from the school district for the 1997-98 and 1998-99 school years. New York did not contest his request and provided the tuition reimbursement for those years

For 1999-2000, the school system developed a new IEP for Gilbert that recommended placement in a highly regarded public school program. Freston rejected the new proposed placement as inappropriate and sought reimbursement for his son's $21,819 in private school tuition. Freston prevailed in administrative proceedings, in which state hearing officers determined that the school district failed to show that the recommended placement was appropriate.

The school system appealed to the U.S. District Court for the Southern District of New York. In its appeal, the district argued that a provision of the IDEA law allows a court to order a school district to reimburse parents for a unilateral private placement only when the child being placed “previously received special education and related services under the authority of a public agency” (20 USC 1412 (a) (10) (C)). In other words, the school district argued that parents must enroll their child in the public schools under a district's IEP before they can pursue reimbursement for a subsequent unilateral private placement.

U.S. District Judge George B. Daniels agreed with this interpretation and rejected Tom F.'s request for tuition reimbursement (2005 U.S. Dist. LEXIS 49, January 3, 2005, copy attached).

Tom F. appealed to the U.S. Court of Appeals for the Second Circuit, which covers Connecticut as well as New York. The appeals court overruled the district court decision. The appeals court found that the federal provision was ambiguous and did not bar a hearing officer or a court from ordering tuition reimbursement for students who never enrolled in private school (2006 U.S. App. LEXIS 20961, August 9, 2006, copy attached).

The New York school system appealed to the U.S. Supreme Court. The Court heard oral arguments on the case on October 1, 2007. But because Justice Anthony Kennedy did not participate and the remaining justices deadlocked 4-4, the Court did not decide the case (552 U.S. ___ (2007), copy attached). Thus, the appeals court ruling in Tom F.'s favor stands. The Supreme Court also declined to hear the appeal of a similar 2nd Circuit Court of Appeals ruling, leaving that ruling in favor of the parents also intact (Frank G. and Dianne G., v. Board of Education of Hyde Park, Central School District, 459 F. 3d 356; 2006 U.S. App. LEXIS 19029, July 27, 2006, copy attached).

After the Supreme Court failed to rule on the Tom F. case, the appeals court remanded the case to the district court with an order to decide the case in accordance with the Frank G. decision.


The rejection of the school district arguments in the two cases leaves the special education law regarding school districts' responsibility for reimbursing private tuition unchanged. There is no requirement that a child receive special education services in a public school before his or her parent can be reimbursed for a private placement. However, before reimbursement can be ordered, certain conditions must still apply.

The federal special education law and regulations specify that a school district is not responsible for paying the cost of a private placement if the district made FAPE available to the child and the parents nevertheless chose to place him or her in a private school. Disputes about the appropriateness of the educational program a district offers are subject to special education due process procedures and may be taken to court after the parties exhaust administrative appeals.

If the parents decide to place the child in a private school, a state administrative hearing officer or the court may require a school district to reimburse the parents for the costs of the private placement if it finds that (1) the district did not offer a timely and appropriate educational program before the private placement and (2) the private placement is appropriate for the child.

Reimbursement can be limited or denied if parents did not:

1. at the most recent planning and placement team (PPT) meeting they attended before the private placement, state (a) that they were rejecting the proposed public program, (b) their concerns about the program, and (c) that they intended to place their child in private school at public expense;

2. give the school district written notice of their objections at least 10 business days before removing their child from public school; and

3. make their child available for evaluation by the school district before removing him or her from public school, if the district provided written notice, according the special education law's requirements, that they wished to evaluate the child and gave an appropriate and reasonable purpose for the evaluation.

Reimbursement may also be denied after a judicial finding that the parents' actions were unreasonable.

The law bars a hearing officer or court from reducing or denying reimbursement for failure to comply with these conditions if:

1. the school prevents the parents from providing the notice,

2. the parents were not informed of the notice requirement as part of the required notice of their due process rights, or

3. compliance with notice requirements could cause the child physical harm.

The hearing office or a court has the discretion to allow full reimbursement when parents fail to comply with the procedural requirements if:

1. the parents are illiterate or cannot write in English or

2. compliance is likely to result in serious emotional harm to the child (20 USC 1412(a)(10)(C) and 34 CFR 300.148, copies attached).