Court Is Split, Won't Hear Special-Education Case

By Robert Barnes
Washington Post Staff Writer
Thursday, October 11, 2007

The Supreme Court yesterday said that it was evenly divided on an important case that would have told public school districts when they must pay for private tuition for special-education students.

The split means that New York must pay private tuition for students for which it cannot provide an appropriate education, even if the student has never attended public school. But because the justices were unable to reach a majority opinion, their action affirms a lower-court decision and creates no national precedent.

Only eight justices heard Board of Education of the City of New York v. Tom F. (06-637) because Justice Anthony M. Kennedy recused himself. The two-sentence opinion did not say how justices voted, so it is unclear whether the court was divided along the ideological groupings that were the hallmark of last term. In a record number of 5 to 4 decisions, Kennedy was the only justice to be in the majority each time. As is customary in the court, Kennedy gave no reason for his recusal.

The case involved a requirement within the Individual with Disabilities Education Act that schools must provide a free appropriate public education to students with special needs. If the school district itself cannot provide such support, a parent may apply for private-school reimbursement.

New York made such payments for a time to the parent in this case, former Viacom executive Tom Freston. It then stopped, saying a 1997 amendment to the law meant it should get the chance to try to educate Freston's son before paying for private school.

Freston, who has said he donated the reimbursements to a New York public school and was bringing the case on behalf of parents who could not afford the expenses, said the law does not require a "try-out" in public schools.

Though only a small percentage of children are covered under the law, the number of students receiving private-school tuition is rapidly increasing. Governments and school systems supported New York, while organizations for the disabled were on Freston's side.

© 2007 The Washington Post Company