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Oral Argument Before Supreme Court: Hearing Officer Authority - Part I

Posted May 04 2009 3:51pm
Oral arguments were held last week for the case pending before the United States Supreme Court. Many of the arguments from the Tom F case resurfaced. If you want to read and review the oral argument, seethis link.

My concern is about the knuckle ball that came out of the school district's reply brief. The district contends that the statutory provision in question- which provides that a child must attend public school first before the parents may seek reimbursement for a unilateral placement- authorizes both hearing officers and courts to award reimbursement. Otherwise, the district contends, only courts and not hearing officers can award such relief.

This is news to me. I think that this is a very creative argument, but if the supremes accept this reasoning, many problems will follow.

In a future post, I will discuss my reasoning. For now, here are some of the interesting arguments:
District Lawyer:
The only provision in IDEA that gives hearing officers the authority to award tuition reimbursement is 1412(a)(10)(C)(ii). So if the statute doesn't work -- the statute doesn't work, and the Secretary's interpretation of 1415(i)(2)(B)(iii) is implausible because it accords to hearing officers the authority that it doesn't have... (TR p 21, 1. 16-22)

JUSTICE GINSBURG: But procedurally we -- we know that there is a provision addressed to a court for equitable relief. The question was put before: Where does the hearing officer get the authority to order tuition reimbursement? Because the statute on which you rely for the court speaks only to the court's authority.
MR. SALMONS: Thank you, Your Honor. I am happy to answer that question. But Petitioner makes this a centerpiece of their reply brief and I think they just misread the statute. And again, keep in mind that these amendments in 1997 were written against a backdrop of this longstanding statute and this Court's interpretations of it. The most direct place where the statute provides hearing officers the authority to hear address reimbursement claims and to award reimbursement ... is 1415(b)(6). This has always been in the statute and it states that the parents must be provided an opportunity to present complaints with respect to "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child."
That is -- again, that has always been understood to include the right to seek reimbursement before the hearing officer. And this Court in Burlington cited legislative history from the 1975 Act that noted that hearing officers could award reimbursement and address such claims in concluding that it was part of the appropriate relief that courts ought to be able to have under 1415. (TR p. 38, l. 17 - p. 39 l.22)

JUSTICE GINSBURG: But procedurally we -- we know that there is a provision addressed to a court for equitable relief. The question was put before: Where does the hearing officer get the authority to order tuition reimbursement? Because the statute on which you rely for the court speaks only to the court's authority.
MR. SALMONS: Thank you, Your Honor. I am happy to answer that question. But Petitioner makes this a centerpiece of their reply brief and I think they just misread the statute. And again, keep in mind that these amendments in 1997 were written against a backdrop of this longstanding statute and this Court's interpretations of it. The most direct place where the statute provides hearing officers the authority to hear address reimbursement claims and to award reimbursement -- and this is on page 9 of the addendum in the blue brief -- is 1415(b)(6). This has always been in the statute and it states that the parents must be provided an opportunity to present complaints with respect to "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child."
That is -- again, that has always been understood to include the right to seek reimbursement before the hearing officer. And this Court in Burlington cited legislative history from the 1975 Act that noted that hearing officers could award reimbursement and address such claims in concluding that it was part of the appropriate relief that courts ought to be able to have under 1415. (TR p. 41 l. 9 - p. 42 l. 5)

JUSTICE SCALIA: Well, you agree they go, as we say, in pari passu -- ... -- that -- that whatever the hearing officer can do, the court can do.
MR. SALMONS: I think generally --
JUSTICE SCALIA: -- and whatever he can't do, the court can't do.
MR. SALMONS: I think they ought to be read together, yes, Your Honor. But I think they ought to be read to provide for the authority to provide tuition reimbursement. (TR p43 l. 6-18)

JUSTICE GINSBURG: Does the -- does the department have a regulation that says the hearing officer may order the private school -- the parents to be reimbursed for private school tuition? Because it's not in the statute.
MR. MILLER:(Reg section) 300.148(b) says that disagreements between the parents and a public agency regarding the availability of a program appropriate for the child and the question of financial reimbursement are subject to the due process hearing procedures. So yes, that regulation gives hearing officers the authority to award reimbursement, as indeed the hearing officer had done Burlington. Burlington was the case... (TR p. 51 l. 13 - p. 52 l. 3)



------- Thanks for subscribing! Jim Gerl
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