Legal Memorandum: A Claim for FAPE and Special Education

Issue: Under federal law, must a pupil have received special education from a school district prior to making a claim for Free Access to Public Education (FAPE)?

The U.S. Supreme Court’s 2009 decision in Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484 (2009) concluded that a child with a disability need not have received any special education from a school district to maintain a viable claim for tuition reimbursement.  “[W]hen a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious as a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.”  Forest Grove Sch. Dist., 129 S. Ct. at 2491.  As the Court made clear, it is not the child’s status as a former student of the district that triggers the right of tuition reimbursement, but rather the district’s violation of the IDEA that is instructive. 

Moreover, in D.L. ex rel. J.L v. Springfield Bd. of Educ., 536 F. Supp. 2d 534 (D.N.J. 2008), the New Jersey federal court ruled that the statutory language no longer served as a jurisdictional bar to the reimbursement claims of parents whose children never attended the district from which reimbursement is sought.  Id.

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