(Slip
Opinion) OCTOBER TERM, 2008
Syllabus
NOTE: Where it is feasible, a syllabus
(headnote) will be released, as isbeing done in
connection with this case, at the time the opinion
is issued.The syllabus constitutes no part of the
opinion of the Court but has beenprepared by the
Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Timber &
Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FOREST GROVE SCHOOL DISTRICT v. T. A.
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
No. 08–305. Argued April 28,
2009—Decided June 22, 2009
After a private specialist diagnosed respondent
with learning disabili-ties, his parents
unilaterally removed him from petitioner
publicschool district (School District), enrolled
him in a private academy,and requested an
administrative hearing on his eligibility for
special-education services under the Individuals
with Disabilities Education Act (IDEA), 20 U. S. C.
§1400 et seq. The School District found
re-spondent ineligible for such services and
declined to offer him an in-dividualized education
program (IEP). Concluding that the School District
had failed to provide respondent a “free
appropriate publiceducation” as required by
IDEA, §1412(a)(1)(A), and that
respon-dent’s private-school placement was
appropriate, the hearing officerordered the School
District to reimburse his parents for his
private-school tuition. The District Court set
aside the award, holding thatthe IDEA Amendments of
1997 (Amendments) categorically bar re-imbursement
unless a child has “previously received
special educa-tion or related services under the
[school’s]
authority.Ӥ1412(a)(10)(C)(ii).
Reversing, the Ninth Circuit concluded that
theAmendments did not diminish the authority of
courts to grant reim-bursement as
“appropriate” relief pursuant to
§1415(i)(2)(C)(iii). See School Comm. of
Burlington v. Department of Ed. of Mass., 471 U. S.
359, 370.
Held: IDEA authorizes reimbursement for private
special-education services when a public school
fails to provide a FAPE and the private-school
placement is appropriate, regardless of whether the
child pre-viously received special-education
services through the public school.Pp.
6–17.
(a) This Court held in Burlington and Florence
County School Dist. Four v. Carter, 510 U. S. 7,
that §1415(i)(2)(C)(iii) authorizes courts
2 FOREST GROVE SCHOOL DIST. v. T. A.
Syllabus
to reimburse parents for the cost of
private-school tuition when a school district fails
to provide a child a FAPE and the
private-schoolplacement is appropriate. That
Burlington and Carter involved the deficiency of a
proposed IEP does not distinguish this case, nor
does the fact that the children in Burlington and
Carter had previously re-ceived special-education
services; the Court’s decision in those cases
depended on the Act’s language and purpose
rather than the particu-lar facts involved. Thus,
the reasoning of Burlington and Carter ap-plies
unless the 1997 Amendments require a different
result. Pp. 6–
8.
(b) The 1997 Amendments do not impose a
categorical bar to reim-bursement. The Amendments
made no change to the central purpose of IDEA or
the text of §1415(i)(2)(C)(iii). Because
Congress is pre-sumed to be aware of, and to adopt,
a judicial interpretation of a statute when it
reenacts that law without change, Lorillard v.
Pons, 434 U. S. 575, 580, this Court will continue
to read §1415(i)(2)(C)(iii)to authorize
reimbursement absent a clear indication that
Congressintended to repeal the provision or
abrogate Burlington and Carter. The School
District’s argument that
§1412(a)(10)(C)(ii) limits reim-bursement to
children who have previously received public
special-education services is unpersuasive for
several reasons: It is not sup-ported by
IDEA’s text, as the 1997 Amendments do not
expresslyprohibit reimbursement in this case and
the School District offers noevidence that Congress
intended to supersede Burlington and Carter; it is
at odds with IDEA’s remedial purpose of
“ensur[ing] that allchildren with
disabilities have available to them a
[FAPE] that em-phasizes special education .
. . designed to meet their unique needs,”
§1400(d)(1)(A); and it would produce a rule
bordering on the irra-tional by providing a remedy
when a school offers a child
inadequatespecial-education services but leaving
parents remediless when the school unreasonably
denies access to such services altogether. Pp.
8–
15.
(c) The School District’s argument that any
conditions on accepting IDEA funds must be stated
unambiguously is clearly satisfied here, as States
have been on notice at least since Burlington that
IDEA au-thorizes courts to order reimbursement. The
School District’s claims that
respondent’s reading will impose a heavy
financial burden on public schools and encourage
parents to enroll their children in pri-vate school
without first trying to cooperate with
public-school au-thorities are also unpersuasive in
light of the restrictions on reim-bursement awards
identified in Burlington and the fact that
parentsunilaterally change their child’s
placement at their own financial risk. See, e.g.,
Carter, 510 U. S., at 15. Pp. 15–16.
523 F. 3d 1078, affirmed.
Cite as: 557 U. S. ____ (2009) 3
Syllabus
STEVENS, J., delivered the opinion of the
Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, and
ALITO, JJ., joined. SOUTER,
J., filed a dissenting opinion, in which
SCALIA and THOMAS, JJ., joined.
_________________
_________________
Cite as: 557 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal
revision before publication in thepreliminary print
of the United States Reports. Readers are requested
tonotify the Reporter of Decisions, Supreme Court
of the United States, Wash-ington, D. C. 20543, of
any typographical or other formal errors, in
orderthat corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 08–305
FOREST GROVE SCHOOL DISTRICT,
PETITIONER
v. T. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2009]
JUSTICE STEVENS delivered the opinion of the
Court.
The Individuals with Disabilities Education Act
(IDEA or Act), 84 Stat. 175, as amended, 20 U. S.
C. §1400 et seq.,requires States receiving
federal funding to make a “free appropriate
public education” (FAPE) available to all
children with disabilities residing in the State,
§1412(a)(1)(A). We have previously held that
when a public school fails to provide a FAPE and a
child’s parentsplace the child in an
appropriate private school without the school
district’s consent, a court may require the
dis-trict to reimburse the parents for the cost of
the private education. See School Comm. of
Burlington v. Department of Ed. of Mass., 471 U. S.
359, 370 (1985). The questionpresented in this case
is whether the IDEA Amendments of 1997
(Amendments), 111 Stat. 37, categorically prohibit
reimbursement for private-education costs if a
child has not “previously received special
education and relatedservices under the authority
of a public agency.” §1412(a)(10)(C)(ii).
We hold that the Amendments imposeno such
categorical bar.
2
FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
I
Respondent T. A. attended public schools in the
Forest Grove School District (School District or
District) from thetime he was in kindergarten
through the winter of his junior year of high
school. From kindergarten through eighth grade,
respondent’s teachers observed that he had
trouble paying attention in class and completing
his as-signments. When respondent entered high
school, hisdifficulties increased.
In December 2000, during respondent’s
freshman year,his mother contacted the school
counselor to discuss re-spondent’s problems
with his schoolwork. At the end of the school year,
respondent was evaluated by a school psychologist.
After interviewing him, examining hisschool
records, and administering cognitive ability tests,
the psychologist concluded that respondent did not
need further testing for any learning disabilities
or other health impairments, including attention
deficit hyperactivity disorder (ADHD). The
psychologist and two other school officials
discussed the evaluation results with
respondent’smother in June 2001, and all
agreed that respondent did not qualify for
special-education services.
Respondent’sparents did not seek review of
that decision, although the hearing examiner later
found that the School District’sevaluation was
legally inadequate because it failed toaddress all
areas of suspected disability, including ADHD.
With extensive help from his family, respondent
com-pleted his sophomore year at Forest Grove High
School, but his problems worsened during his junior
year. In February 2003, respondent’s parents
discussed with the School District the possibility
of respondent completing high school through a
partnership program with the localcommunity
college. They also sought private professional
advice, and in March 2003 respondent was diagnosed
withADHD and a number of disabilities related to
learning and memory. Advised by the private
specialist that respon-
Cite as: 557 U. S. ____ (2009) 3
Opinion of the Court
dent would do best in a structured, residential
learningenvironment, respondent’s parents
enrolled him at a private academy that focuses on
educating children withspecial needs.
Four days after enrolling him in private school,
respon-dent’s parents hired a lawyer to
ascertain their rights and to give the School
District written notice of respondent’sprivate
placement. A few weeks later, in April
2003,respondent’s parents requested an
administrative dueprocess hearing regarding
respondent’s eligibility for special-education
services. In June 2003, the District engaged a
school psychologist to assist in determining
whether respondent had a disability that
significantlyinterfered with his educational
performance. Respon-dent’s parents cooperated
with the District during theevaluation process. In
July 2003, a multidisciplinary teammet to discuss
whether respondent satisfied IDEA’s
dis-ability criteria and concluded that he did not
because hisADHD did not have a sufficiently
significant adverseimpact on his educational
performance. Because the School District maintained
that respondent was not eligi-ble for
special-education services and therefore declined
to provide an individualized education program
(IEP),1 re-spondent’s parents left him
enrolled at the private acad-emy for his senior
year.
The administrative review process resumed in
Septem-ber 2003. After considering the
parties’ evidence, includ-ing the testimony of
numerous experts, the hearing officerissued a
decision in January 2004 finding that
respon-dent’s ADHD adversely affected his
educational perform-ance and that the School
District failed to meet its obliga-
—————— 1An IEP is
an education plan tailored to a child’s unique
needs that isdesigned by the school district in
consultation with the child’s parentsafter the
child is identified as eligible for
special-education services. See 20 U. S. C.
§§1412(a)(4), 1414(d).
4 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
tions under IDEA in not identifying respondent
as a stu-dent eligible for special-education
services. Because the District did not offer
respondent a FAPE and his private-school placement
was appropriate under IDEA, the hear-ing officer
ordered the District to reimburse
respondent’sparents for the cost of the
private-school tuition.2
The School District sought judicial review
pursuant to§1415(i)(2), arguing that the
hearing officer erred in grant-ing reimbursement.
The District Court accepted the hearing
officer’s findings of fact but set aside the
reim-bursement award after finding that the 1997
Amendmentscategorically bar reimbursement of
private-school tuition for students who have not
“previously received specialeducation and
related services under the authority of apublic
agency.” §612(a)(10)(C)(ii), 111 Stat.
63, 20 U. S. C.§1412(a)(10)(C)(ii). The
District Court further held that,
“[e]ven assuming that tuition
reimbursement may be ordered in an extreme case for
a student not receivingspecial education services,
under general principles of equity where the need
for special education was obvious toschool
authorities,” the facts of this case do not
supportequitable relief. App. to Pet. for Cert.
53a.
The Court of Appeals for the Ninth Circuit
reversed andremanded for further proceedings. The
court first noted that, prior to the 1997
Amendments, “IDEA was silent onthe subject of
private school reimbursement, but courtshad granted
such reimbursement as ‘appropriate’
relief under principles of equity pursuant to 20 U.
S. C. §1415(i)(2)(C).” 523 F. 3d 1078,
1085 (2008) (citing Bur-lington, 471 U. S., at
370). It then held that the Amend-ments do not
impose a categorical bar to reimbursement
—————— 2Although
it was respondent’s parents who initially
sought reim-bursement, when respondent reached the
age of majority in 2003 hisparents’ rights
under IDEA transferred to him pursuant to Ore.
Admin. Rule 581–015–2325(1) (2008).
Cite as: 557 U. S. ____ (2009) 5
Opinion of the Court
when a parent unilaterally places in private
school a childwho has not previously received
special-education services through the public
school. Rather, such students “are eligible
for reimbursement, to the same extent as before the
1997 amendments, as ‘appropriate’ relief
pursuant to §1415(i)(2)(C).” 523 F. 3d,
at 1087–1088.
The Court of Appeals also rejected the District
Court’s analysis of the equities as resting on
two legal errors. First, because it found that
§1412(a)(10)(C)(ii) generally bars relief in
these circumstances, the District Court wrongly
stated that relief was appropriate only if the
equities were sufficient to
“‘override’” that statutory
limi-tation. The District Court also erred in
asserting thatreimbursement is limited to
“‘extreme’” cases. Id., at 1088
(emphasis deleted). The Court of Appeals therefore
re-manded with instructions to reexamine the
equities, in-cluding the failure of
respondent’s parents to notify theSchool
District before removing respondent from public
school. In dissent, Judge Rymer stated her view
that reimbursement is not available as an equitable
remedy in this case because respondent’s
parents did not request anIEP before removing him
from public school and respon-dent’s right to
a FAPE was therefore not at issue.
Because the Courts of Appeals that have
considered this question have reached inconsistent
results,3 we grantedcertiorari to determine whether
§1412(a)(10)(C) estab-lishes a categorical bar
to tuition reimbursement for stu-dents who have not
previously received special-education services
under the authority of a public education
agency.
—————— 3Compare
Frank G. v. Board of Ed. of Hyde Park, 459 F. 3d
356, 376 (CA2 2006) (holding that
§1412(a)(10)(C)(ii) does not bar
reimburse-ment for students who have not previously
received public special-education services), and M.
M. v. School Bd. of Miami-Dade Cty., Fla., 437 F.
3d 1085, 1099 (CA11 2006) (per curiam) (same), with
Greenland School Dist. v. Amy N., 358 F. 3d 150,
159–160 (CA1 2004) (findingreimbursement
barred in those circumstances).
6 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
555 U. S. ___ (2009).4
II Justice Rehnquist’s opinion for a
unanimous Court in Burlington provides the
pertinent background for our analysis of the
question presented. In that case, respon-dent
challenged the appropriateness of the IEP
developedfor his child by public-school officials.
The child had pre-viously received
special-education services through the public
school. While administrative review was pending,
private specialists advised respondent that the
child would do best in a specialized private
educational setting, and respondent enrolled the
child in private school without the school
district’s consent. The hearing officer
concludedthat the IEP was not adequate to meet the
child’s educa-tional needs and that the school
district therefore failed to provide the child a
FAPE. Finding also that the private-school
placement was appropriate under IDEA, the hear-ing
officer ordered the school district to reimburse
respon-dent for the cost of the private-school
tuition.We granted certiorari in Burlington to
determine whether IDEA authorizes reimbursement for
the cost of private education when a parent or
guardian unilaterally enrolls a child in private
school because the public school has proposed an
inadequate IEP and thus failed to providea FAPE.
The Act at that time made no express reference to
the possibility of reimbursement, but it authorized
a court to “grant such relief as the court
determines is ap-propriate.”
§1415(i)(2)(C)(iii).5 In determining the scope
—————— 4We previously
granted certiorari to address this question in
Board of Ed. of City School Dist. of New York v.
Tom F., 552 U. S. 1 (2007), inwhich we affirmed
without opinion the judgment of the Court of
Ap-peals for the Second Circuit by an equally
divided vote. 5At the time we decided Burlington,
that provision was codified at §1415(e)(2).
The 1997 Amendments renumbered the provision but
did not alter its text. For ease of reference, we
refer to the provision by its current section
number, §1415(i)(2)(C)(iii).
Cite as: 557 U. S. ____ (2009) 7
Opinion of the Court
of the relief authorized, we noted that
“the ordinary mean-ing of these words confers
broad discretion on the court”and that, absent
any indication to the contrary, what reliefis
“appropriate” must be determined in light
of the Act’s broad purpose of providing
children with disabilities a FAPE, including
through publicly funded private-school placements
when necessary. 471 U. S., at 369. Accord-ingly, we
held that the provision’s grant of authority
in-cludes “the power to order school
authorities to reimburse parents for their
expenditures on private special-education services
if the court ultimately determines that such
place-ment, rather than a proposed IEP, is proper
under the Act.” Ibid.
Our decision rested in part on the fact that
administra-tive and judicial review of a
parent’s complaint often takes years. We
concluded that, having mandated that partici-pating
States provide a FAPE for every student, Congress
could not have intended to require parents to
either acceptan inadequate public-school education
pending adjudica-tion of their claim or bear the
cost of a private education if the court ultimately
determined that the private place-ment was proper
under the Act. Id., at 370. Eight yearslater, we
unanimously reaffirmed the availability of
reim-bursement in Florence County School Dist. Four
v. Carter, 510 U. S. 7 (1993) (holding that
reimbursement may be appropriate even when a child
is placed in a private school that has not been
approved by the State).
The dispute giving rise to the present
litigation differsfrom those in Burlington and
Carter in that it concerns not the adequacy of a
proposed IEP but the School District’sfailure
to provide an IEP at all. And, unlike
respondent,the children in those cases had
previously received publicspecial-education
services. These differences are insignifi-cant,
however, because our analysis in the earlier
casesdepended on the language and purpose of the
Act and not the particular facts involved.
Moreover, when a child
8 FOREST GROVE SCHOOL DIST. v. T. A.
Opinion of the Court
requires special-education services, a school
district’sfailure to propose an IEP of any
kind is at least as serious a violation of its
responsibilities under IDEA as a failure to provide
an adequate IEP. It is thus clear that the
reasoning of Burlington and Carter applies equally
to this case. The only question is whether the 1997
Amendments require a different result.
III Congress enacted IDEA in 19706 to ensure
that all children with disabilities are provided
“‘a free appropriate public education
which emphasizes special education and related
services designed to meet their unique needs
[and]to assure that the rights of
[such] children and their par-ents or
guardians are protected.’” Burlington,
471 U. S., at 367 (quoting 20 U. S. C.
§1400(c) (1982 ed.), now codi-fied as amended
at §§1400(d)(1)(A), (B)). After
examiningthe States’ progress under IDEA,
Congress found in 1997 that substantial gains had
been made in the area of spe-cial education but
that more needed to be done to guaran-tee children
with disabilities adequate access to appropri-ate
services. See S. Rep. No. 105–17, p. 5 (1997).
The 1997 Amendments were intended “to place
greater em-phasis on improving student performance
and ensuring that children with disabilities
receive a quality public education.” Id., at
3. Consistent with that goal, the Amendments
preservedthe Act’s purpose of providing a FAPE
to all children withdisabilities. And they did not
change the text of the provi-sion we considered in
Burlington, §1415(i)(2)(C)(iii), which
gives courts broad authority to grant
“appropriate” relief,including
reimbursement for the cost of private special
——————
6The legislation was enacted as the Education of
the HandicappedAct, title VI of Pub. L.
91–230, 84 Stat. 175, and was renamed the
Individuals with Disabilities Education Act in
1990, see §901(a)(3),Pub. L. 101–476, 104
Stat. 1142.
Cite as: 557 U. S. ____ (2009) 9
Opinion of the Court
education when a school district fails to
provide a FAPE.“Congress is presumed to be
aware of an administrative or judicial
interpretation of a statute and to adopt that
inter-pretation when it re-enacts a statute without
change.” Lorillard v. Pons, 434 U. S. 575, 580
(1978). Accordingly, absent a clear expression
elsewhere in the Amendments of Congress’
intent to repeal some portion of that provision
orto abrogate our decisions in Burlington and
Carter, we will continue to read
§1415(i)(2)(C)(iii) to authorize the relief
respondent seeks.
The School District and the dissent argue that
one of theprovisions enacted by the Amendments,
§1412(a)(10)(C),effects such a repeal. Section
1412(a)(10)(C) is entitled “Payment for
education of children enrolled in private schools
without consent of or referral by the
publicagency,” and it sets forth a number of
principles applicable to public reimbursement for
the costs of unilateral private-school placements.
Section 1412(a)(10)(C)(i) states thatIDEA
“does not require a local educational agency
to pay for the cost of education . . . of a child
with a disability at a private school or facility
if that agency made a free appro-priate public
education available to the child” and
hisparents nevertheless elected to place him in a
privateschool. Section 1412(a)(10)(C)(ii) then
provides that a“court or hearing officer may
require [a public] agency toreimburse the
parents for the cost of
[private-school]enrollment if the court or
hearing officer finds that theagency had not made a
free appropriate public education available”
and the child has “previously received special
education and related services under the authority
of [the] agency.” Finally,
§1412(a)(10)(C)(iii) discusses circum-stances
under which the “cost of reimbursement
described in clause (ii) may be reduced or
denied,” as when a parentfails to give 10
days’ notice before removing a child
frompublic school or refuses to make a child
available for evaluation, and
§1412(a)(10)(C)(iv) lists circumstances in
10 FOREST GROVE SCHOOL DIST. v. T.
A.
Opinion of the Court
which a parent’s failure to give notice may
or must be excused.7
Looking primarily to clauses (i) and (ii), the
SchoolDistrict argues that Congress intended
§1412(a)(10)(C) to provide the exclusive
source of authority for courts toorder
reimbursement when parents unilaterally enroll
achild in private school. According to the
District, clause (i)provides a safe harbor for
school districts that provide a FAPE by foreclosing
reimbursement in those circum-stances. Clause (ii)
then sets forth the circumstance in which
reimbursement is appropriate—namely, when a
school district fails to provide a FAPE to a child
who has previously received special-education
services through thepublic school. The District
contends that because §1412(a)(10)(C) only
discusses reimbursement for children who have
previously received special-education
servicesthrough the public school, IDEA only
authorizes reim-bursement in that circumstance. The
dissent agrees.
For several reasons, we find this argument
unpersua-sive. First, the School District’s
reading of the Act is notsupported by its text and
context, as the 1997 Amend-ments do not expressly
prohibit reimbursement under thecircumstances of
this case, and the District offers no evi-dence
that Congress intended to supersede our decisionsin
Burlington and Carter. Clause (i)’s safe
harbor explic-itly bars reimbursement only when a
school district makesa FAPE available by correctly
identifying a child as having a disability and
proposing an IEP adequate to meet the child’s
needs. The clause says nothing about the
availabil-ity of reimbursement when a school
district fails to provide a FAPE. Indeed, its
statement that reimbursement is not authorized when
a school district provides a FAPE could be read to
indicate that reimbursement is authorized
—————— 7The full
text of §1412(a)(10)(C) is set forth in the
Appendix, infra, at 18.
Cite as: 557 U. S. ____ (2009) 11
Opinion of the Court
when a school district does not fulfill that
obligation.
Clause (ii) likewise does not support the
District’s posi-tion. Because that clause is
phrased permissively, statingonly that courts
“may require” reimbursement in those
circumstances, it does not foreclose reimbursement
awards in other circumstances. Together with
clauses (iii) and (iv), clause (ii) is best read as
elaborating on the gen-eral rule that courts may
order reimbursement when aschool district fails to
provide a FAPE by listing factorsthat may affect a
reimbursement award in the commonsituation in which
a school district has provided a childwith some
special-education services and the child’s
par-ents believe those services are inadequate.
Referring asthey do to students who have previously
received special-education services through a
public school, clauses (ii)through (iv) are
premised on a history of cooperation and together
encourage school districts and parents to con-tinue
to cooperate in developing and implementing an
appropriate IEP before resorting to a unilateral
privateplacement.8 The clauses of
§1412(a)(10)(C) are thus bestread as
elucidative rather than exhaustive. Cf. United
—————— 8The
dissent asserts that, under this reading of the
Act, “Congress has called for reducing
reimbursement only for the most deserving . . .but
provided no mechanism to reduce reimbursement to
the least deserving.” Post, at 6 (opinion of
SOUTER, J.). In addition to makingunsubstantiated
generalizations about the desert of parents
whosechildren have been denied public
special-education services, the dissentgrossly
mischaracterizes our view of §1412(a)(10)(C).
The fact that clause (iii) permits a court to
reduce a reimbursement award when a parent whose
child has previously received special-education
servicesfails to give the school adequate notice of
an intended private place-ment does not mean that
it prohibits courts from similarly reducing
theamount of reimbursement when a parent whose
child has not previ-ously received services fails
to give such notice. Like clause (ii), clause
(iii) provides guidance regarding the
appropriateness of relief in acommon factual
scenario, and its instructions should not be
understood to preclude courts and hearing officers
from considering similar factors in other
scenarios.
12 FOREST GROVE SCHOOL DIST. v. T.
A.
Opinion of the Court
States v. Atlantic Research Corp., 551 U. S.
128, 137 (2007) (noting that statutory language may
“perfor[m] a significant function
simply by clarifying” a
provision’smeaning).9
This reading of §1412(a)(10)(C) is
necessary to avoid the conclusion that Congress
abrogated sub silentio our deci-sions in Burlington
and Carter. In those cases, we con-strued
§1415(i)(2)(C)(iii) to authorize reimbursement
whena school district fails to provide a FAPE and a
child’s private-school placement is
appropriate, without regard tothe child’s
prior receipt of services.10 It would take more
than Congress’ failure to comment on the
category of casesin which a child has not
previously received special-education services for
us to conclude that the Amendments substantially
superseded our decisions and in large part
—————— 9In arguing
that §1412(a)(10)(C) is the exclusive source
of authorityfor granting reimbursement awards to
parents who unilaterally place achild in private
school, the dissent neglects to explain that
provision’sfailure to limit the type of
private-school placements for which parents may be
reimbursed. School Comm. of Burlington v.
Department of Ed. of Mass. held that courts may
grant reimbursement under §1415(i)(2)(C)(iii)
only when a school district fails to provide a FAPE
and the private-school placement is appropriate.
See 471 U. S. 359, 369 (1985); see Florence County
School Dist. Four v. Carter, 510 U. S. 7,
12–13 (1993). The latter requirement is
essential to ensuring that reimbursement awards are
granted only when such relief furthers the purposes
of the Act. See Burlington, 471 U. S., at 369. That
§1412(a)(10)(C) did not codify that
requirement further indicates that Congress did not
intend that provision to supplant
§1415(i)(2)(C)(iii) asthe sole authority on
reimbursement awards but rather meant toaugment the
latter provision and our decisions construing it.
10As discussed above, although the children in
Burlington and Carter had previously received
special-education services in public school, our
decisions in no way depended on their prior receipt
of services. Those holdings rested instead on the
breadth of the authority conferred by
§1415(i)(2)(C)(iii), the interest in providing
relief consistent with theAct’s purpose, and
the injustice that a contrary reading would
produce, see Burlington, 471 U. S., at
369–370; see also Carter, 510 U. S., at
12– 14—considerations that were not
altered by the 1997 Amendments.
Cite as: 557 U. S. ____ (2009) 13
Opinion of the Court
repealed §1415(i)(2)(C)(iii). See Branch v.
Smith, 538
U. S. 254, 273 (2003) (“[A]bsent a
clearly expressed con-gressional intention, repeals
by implication are not fa-vored” (internal
quotation marks and citation omitted)).11 We
accordingly adopt the reading of
§1412(a)(10)(C) thatis consistent with those
decisions.12
The School District’s reading of
§1412(a)(10)(C) is alsoat odds with the
general remedial purpose underlyingIDEA and the
1997 Amendments. The express purpose ofthe Act is
to “ensure that all children with disabilities
have available to them a free appropriate public
education
—————— 11For the
same reason, we reject the District’s argument
that because §1412(a)(10)(C)(ii) authorizes
“a court or a hearing officer” to award
reimbursement for private-school tuition, whereas
§1415(i)(2)(C)(iii)only provides a general
grant of remedial authority to
“court[s],” the latter section
cannot be read to authorize hearing officers to
award reimbursement. That argument ignores our
decision in Burlington, 471
U. S., at 363, 370, which interpreted
§1415(i)(2)(C)(iii) to authorize hearing
officers as well as courts to award reimbursement
notwith-standing the provision’s silence with
regard to hearing officers. When Congress amended
IDEA without altering the text of
§1415(i)(2)(C)(iii),it implicitly adopted that
construction of the statute. See Lorillard v. Pons,
434 U. S. 575, 580–581 (1978).
12Looking to the Amendments’ legislative
history for support, the School District cites two
House and Senate Reports that essentiallyrestate
the text of §1412(a)(10)(C)(ii), H. R. Rep.
No. 105–95, pp. 92–93(1997); S. Rep. No.
105–17, p. 13 (1997), and a floor statement
byRepresentative Mike Castle, 143 Cong. Rec. 8013
(1997) (stating thatthe “bill makes it harder
for parents to unilaterally place a child in
eliteprivate schools at public taxpayer expense,
lowering costs to local school districts”).
Those ambiguous references do not undermine
themeaning that we discern from the statute’s
language and context.
Notably, the agency charged with implementing
IDEA has adopted respondent’s reading of the
statute. In commentary to regulations implementing
the 1997 Amendments, the Department of Education
stated that “hearing officers and courts
retain their authority, recog-nized in Burlington .
. . to award ‘appropriate’ relief if a
public agencyhas failed to provide FAPE, including
reimbursement . . . in instancesin which the child
has not yet received special education and related
services.” 64 Fed. Reg. 12602 (1999); see 71
Fed. Reg. 46599 (2006).
14 FOREST GROVE SCHOOL DIST. v. T.
A.
Opinion of the Court
that emphasizes special education and related
services designed to meet their unique needs,”
§1400(d)(1)(A)—afactor we took into
account in construing the scope of
§1415(i)(2)(C)(iii), see Burlington, 471 U.
S., at 369. With-out the remedy respondent seeks, a
“child’s right to a free appropriate
education . . . would be less than complete.”
Id., at 370. The District’s position similarly
conflicts withIDEA’s “child find”
requirement, pursuant to which Statesare obligated
to “identif[y], locat[e], and
evaluat[e]”
“[a]llchildren with disabilities
residing in the State” to ensure that they
receive needed special-education services.
§1412(a)(3)(A); see §1412(a)(10)(A)(ii).
A reading of the Act that left parents without an
adequate remedy when a school district unreasonably
failed to identify a child withdisabilities would
not comport with Congress’ acknowl-edgment of
the paramount importance of properly identi-fying
each child eligible for services.
Indeed, by immunizing a school district’s
refusal to find a child eligible for
special-education services no matter how compelling
the child’s need, the School District’s
interpretation of §1412(a)(10)(C) would
produce a rule bordering on the irrational. It
would be particularlystrange for the Act to provide
a remedy, as all agree itdoes, when a school
district offers a child inadequatespecial-education
services but to leave parents withoutrelief in the
more egregious situation in which the
schooldistrict unreasonably denies a child access
to such servicesaltogether. That IDEA affords
parents substantial proce-dural safeguards,
including the right to challenge a school
district’s eligibility determination and
obtain prospectiverelief, see post, at 11, is no
answer. We roundly rejected that argument in
Burlington, observing that the “review process
is ponderous” and therefore inadequate to
ensure that a school’s failure to provide a
FAPE is remedied with the speed necessary to avoid
detriment to the child’s edu-cation. 471 U.
S., at 370. Like Burlington, see ibid., this
Cite as: 557 U. S. ____ (2009) 15
Opinion of the Court
case vividly demonstrates the problem of delay,
as respon-dent’s parents first sought a due
process hearing in April 2003, and the District
Court issued its decision in May 2005—almost a
year after respondent graduated fromhigh school.
The dissent all but ignores these shortcom-ings of
IDEA’s procedural safeguards.
IV The School District advances two additional
argumentsfor reading the Act to foreclose
reimbursement in this case. First, the District
contends that because IDEA was an exercise of
Congress’ authority under the Spending Clause,
U. S. Const., Art. I, §8, cl. 1, any
conditions at-tached to a State’s acceptance
of funds must be stated unambiguously. See
Pennhurst State School and Hospital
v.
Halderman, 451 U. S. 1, 17 (1981). Applying that
prin-ciple, we held in Arlington Central School
Dist. Bd. of Ed.
v.
Murphy, 548 U. S. 291, 304 (2006), that
IDEA’s fee-shifting provision,
§1415(i)(3)(B), does not authorize courts to
award expert-services fees to prevailing parents
inIDEA actions because the Act does not put States
on notice of the possibility of such awards. But
Arlington is readily distinguishable from this
case. In accepting IDEA funding, States expressly
agree to provide a FAPE to allchildren with
disabilities. See §1412(a)(1)(A). An order
awarding reimbursement of private-education costs
whena school district fails to provide a FAPE
merely requires the district “to belatedly pay
expenses that it should have paid all along.”
Burlington, 471 U. S., at 370–371. And States
have in any event been on notice at least since our
decision in Burlington that IDEA authorizes courts
to order reimbursement of the costs of private
special-education services in appropriate
circumstances. Penn-hurst’s notice requirement
is thus clearly satisfied.
Finally, the District urges that
respondent’s reading ofthe Act will impose a
substantial financial burden on
16 FOREST GROVE SCHOOL DIST. v. T.
A.
Opinion of the Court
public school districts and encourage parents to
immedi-ately enroll their children in private
school without firstendeavoring to cooperate with
the school district. The dissent echoes this
concern. See post, at 10. For several reasons,
those fears are unfounded. Parents “are
entitled to reimbursement only if a federal court
concludes both that the public placement violated
IDEA and the private school placement was proper
under the Act.” Carter, 510
U. S., at 15. And even then courts retain
discretion to reduce the amount of a reimbursement
award if the equi-ties so warrant—for
instance, if the parents failed to givethe school
district adequate notice of their intent to enroll
the child in private school. In considering the
equities, courts should generally presume that
public-school offi-cials are properly performing
their obligations under IDEA. See Schaffer v.
Weast, 546 U. S. 49, 62–63 (2005) (STEVENS,
J., concurring). As a result of these criteria and
the fact that parents who “‘unilaterally
change their child’s placement during the
pendency of review proceed-ings, without the
consent of state or local school officials, do so
at their own financial risk,’” Carter,
510 U. S., at 15 (quoting Burlington, 471 U. S., at
373–374), the incidence of private-school
placement at public expense is quitesmall, see
Brief for National Disability Rights Networket al.
as Amici Curiae 13–14.
V The IDEA Amendments of 1997 did not modify the
text of §1415(i)(2)(C)(iii), and we do not
read §1412(a)(10)(C) toalter that
provision’s meaning. Consistent with our
deci-sions in Burlington and Carter, we conclude
that IDEA authorizes reimbursement for the cost of
private special-education services when a school
district fails to provide aFAPE and the
private-school placement is appropriate, regardless
of whether the child previously received special
education or related services through the public
school.
Cite as: 557 U. S. ____ (2009) 17
Opinion of the Court
When a court or hearing officer concludes that a
schooldistrict failed to provide a FAPE and the
private place-ment was suitable, it must consider
all relevant factors, including the notice provided
by the parents and the school district’s
opportunities for evaluating the child, in
determining whether reimbursement for some or all
of the cost of the child’s private education
is warranted. As the Court of Appeals noted, the
District Court did not properlyconsider the
equities in this case and will need to under-take
that analysis on remand. Accordingly, the
judgmentof the Court of Appeals is affirmed.
It is so ordered.
Opinion of the Court
18 FOREST GROVE SCHOOL DIST. v. T. A.
Appendix to opinion of the
Court
APPENDIX Title 20 U. S. C. §1412(a)(10)(C)
provides: “(C) Payment for education of
children enrolled in private schools without
consent of or referral by the public agency
“(i) In general“Subject to subparagraph
(A), this subchapter does not require a local
educational agency to pay for the costof education,
including special education and relatedservices, of
a child with a disability at a private school
orfacility if that agency made a free appropriate
public
education available to the child and the parents
elected to place the child in such private school
or facility. “(ii) Reimbursement for private
school placement
“If the parents of a child with a
disability, who previ-ously received special
education and related servicesunder the authority
of a public agency, enroll the childin a private
elementary school or secondary school with-out the
consent of or referral by the public agency, acourt
or a hearing officer may require the agency to
re-imburse the parents for the cost of that
enrollment if the court or hearing officer finds
that the agency had notmade a free appropriate
public education available tothe child in a timely
manner prior to that enrollment. “(iii)
Limitation on reimbursement
“The cost of reimbursement described in
clause (ii)may be reduced or denied— “(I)
if—
“(aa) at the most recent IEP meeting that
the par-ents attended prior to removal of the child
from the public school, the parents did not inform
the IEP Team that they were rejecting the placement
pro-posed by the public agency to provide a free
appro-priate public education to their child,
including stat-ing their concerns and their intent
to enroll their
Opinion of the Court
Cite as: 557 U. S. ____ (2009)
19
Appendix to opinion of the Court
child in a private school at public expense;
or
“(bb) 10 business days (including any
holidaysthat occur on a business day) prior to the
removal ofthe child from the public school, the
parents did not give written notice to the public
agency of the in-formation described in item
(aa);
“(II) if, prior to the parents’
removal of the childfrom the public school, the
public agency informed the parents, through the
notice requirements described in section 1415(b)(3)
of this title, of its intent to evaluate the child
(including a statement of the purpose of
theevaluation that was appropriate and reasonable),
butthe parents did not make the child available for
such evaluation; or
“(III) upon a judicial finding of
unreasonablenesswith respect to actions taken by
the parents.”
_________________
_________________
Cite as: 557 U. S. ____ (2009) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 08–305
FOREST GROVE SCHOOL DISTRICT,
PETITIONER
v. T. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2009]
JUSTICE SOUTER, with whom JUSTICE SCALIA
and
JUSTICE THOMAS join,
dissenting.
I respectfully dissent.
School Comm. of Burlington v. Department of Ed.
of Mass., 471 U. S. 359 (1985), held that the
Education of theHandicapped Act, 84 Stat. 175, now
known as the Indi-viduals with Disabilities
Education Act (IDEA), 20 U. S. C. §1400 et
seq., authorized a district court to order
reim-bursement of private school tuition and
expenses to par-ents who took their disabled child
from public school because the school’s
special education services did not meet the
child’s needs. We said that, for want of any
specific limitation, this remedy was within the
general authorization for courts to award
“such relief as [they]
determin[e] is appropriate.”
§1415(e)(2) (1982 ed.) (now codified at
§1415(i)(2)(C)(iii) (2006 ed.)). In 1997,
however, Congress amended the IDEA with a number of
provisions explicitly addressing the issue of
“[p]ayment for educationof children
enrolled in private schools without consent ofor
referral by the public agency.”
§1412(a)(10)(C). These amendments generally
prohibit reimbursement if the school district made
a “free appropriate public
education”(FAPE) available,
§1412(a)(10)(C)(i), and if they are to have
any effect, there is no exception except by
agreement, §1412(a)(10)(B), or for a student
who previously received
2 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
special education services that were
inadequate,§1412(a)(10)(C)(ii).
The majority says otherwise and holds that
§1412(a)(10)(C)(ii) places no limit on
reimbursements for private tuition. The Court does
not find the provisionclear enough to affect the
rule in Burlington, and it does not believe
Congress meant to limit public reimbursementfor
unilaterally incurred private school tuition. But
there is no authority for a heightened standard
before Congresscan alter a prior judicial
interpretation of a statute, andthe assessment of
congressional policy aims falls short oftrumping
what seems to me to be the clear limitation imposed
by §1412(a)(10)(C)(ii).
I In Burlington, parents of a child with a
learning dis-ability tried for over eight years to
work out a satisfactory individualized education
plan (IEP) for their son. 471
U. S., at 361–362. They eventually gave up
and sent theboy to a private school for disabled
children, id., at 362, and we took the ensuing case
to decide whether the Edu-cation of the Handicapped
Act authorized courts to orderreimbursement for
private special education “if the
courtultimately determines that such placement,
rather than a proposed IEP, is proper under the
Act,” id., at 369. After noting various
sections that “emphasiz[e] the
participationof the parents in developing the
child’s [public] educa-tional
program,” id., at 368, we inferred that the
Act au-thorized reimbursement by providing that a
district courtshall “‘grant such relief
as [it] determines is
appropriate,’” id., at 369 (quoting what
is now §1415(i)(2)(C)(iii); altera-tion in
original). We emphasized that the Act did notspeak
specifically to the issue of reimbursement, and
held that “[a]bsent other
reference,” reimbursement for private tuition
and expenses would be an
“‘appropriate’” remedy
Cite as: 557 U. S. ____ (2009) 3
SOUTER, J., dissenting
in light of the purposes of the Act. Id., at
369–370. In short, we read the general
provision for ordering equitableremedies in
§1415(i)(2)(C)(iii) as authorizing a
reim-bursement order, in large part because
Congress had not spoken more specifically to the
issue.
But Congress did speak explicitly when it
amended theIDEA in 1997. It first said that
whenever the State or a local educational agency
refers a student to private specialeducation, the
bill is a public expense. See 20 U. S. C.
§1412(a)(10)(B). It then included several
clauses address-ing “[p]ayment for
education of children enrolled in private schools
without consent of or referral by the
publicagency.” §1412(a)(10)(C). The first
contrasts with the provision covering an agency
referral:
“(i) In general “. . . this subchapter
does not require a local educa-tional agency to pay
for the cost of education . . . of a child with a
disability at a private school or facility ifthat
agency made a free appropriate public education
available to the child and the parents elected to
place the child in such private school or
facility.Ӥ1412(a)(10)(C).
The second clause covers the case in which the
school authority failed to make a FAPE available in
its schools.It does not, however, provide simply
that the authority must pay in this case, no matter
what. Instead it provides this:
“(ii) Reimbursement for private school
placement
“If the parents of a child with a
disability, who pre-viously received special
education and related servicesunder the authority
of a public agency, enroll the child in a private
elementary school or secondary school without the
consent of or referral by the public agency, a
court or a hearing officer may require the
4 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
agency to reimburse the parents for the cost of
thatenrollment if the court or hearing officer
finds thatthe agency had not made a free
appropriate public education available to the child
in a timely mannerprior to that enrollment.”
§1412(a)(10)(C).
Two additional clauses spell out in some detail
variousfacts upon which the reimbursement described
in clause
(ii) may be “reduced or denied.” See
§§1412(a)(10)(C)(iii) and (iv).
As a purely semantic matter, these provisions
are am-biguous in their silence about the case with
no previousspecial education services and no FAPE
available. As the majority suggests, ante, at
10–11, clause (i) could theoreti-cally be
understood to imply that reimbursement may
beordered whenever a school district fails to
provide a FAPE,and clause (ii) could be read as
merely taking care tomention one of a variety of
circumstances in which such reimbursement is
permitted. But this is overstretching. When
permissive language covers a special case, the
natu-ral sense of it is taken to prohibit what it
fails to author-ize. When a mother tells a boy that
he may go out and play after his homework is done,
he knows what she means.
So does anyone who reads the authorization of a
reim-bursement order in the case of “a child
with a disability, who previously received special
education and related services under the authority
of a public agency.”
§1412(a)(10)(C)(ii).1 If the mother did not
mean that the
—————— 1Likewise,
no one is unsure whether this Court’s Rule
18.6, which states, “Within 30 days after the
case is placed on this Court’s docket, the
appellee may file a motion to dismiss . . . ,”
allows for a motion todismiss after 30 days. See
also Carlisle v. United States, 517 U. S. 416,
431–32 (1996) (listing numerous examples of
permissive statements,such as then Federal Rule of
Criminal Procedure 17(d)’s statement thata
subpoena “may be served” by a person
“who is not less than 18 years of age,”
that plainly carry a restrictive meaning).
Cite as: 557 U. S. ____ (2009) 5
SOUTER, J., dissenting
homework had to be done, why did she mention it
at all, and if Congress did not mean to restrict
reimbursementauthority by reference to previous
receipt of services, why did it even raise the
subject? “[O]ne of the most
basicinterpretive canons [is] that
[a] statute should be con-strued so that
effect is given to all its provisions, so that no
part will be inoperative or superfluous, void or
insig-nificant . . . .” Corley v. United
States, 556 U. S. ___, ___ (2009) (slip op., at 9)
(internal quotation marks omitted).But not on the
Court’s reading, under which clause (ii)does
nothing but describe a particular subset of cases
subject to remedial authority already given to
courts by§1415(i)(2)(C)(iii) and recognized in
Burlington: a court may order reimbursement for a
child who previously received special education
related services, but it may do this for any other
child, too.2 But this is just not plausible, the
notion that Congress added a new provision to the
IDEA entitled “Reimbursement for private
school place-ment” that had no effect
whatsoever on reimbursement for private school
placement. I would read clause (i) as writ-ten on
the assumption that the school authorities can
beexpected to honor their obligations and as
stating the general rule that unilateral placement
cannot be reim-bursed. See §1412(a)(10)(C)(i)
(“In general . . . ”). And I would read
clause (ii) as imposing a receipt of prior ser-
—————— 2The
majority says that “clause (ii) is best read
as elaborating on the general rule that courts may
order reimbursement when a school district fails to
provide a FAPE by listing factors that may affect
areimbursement award in the common situation in
which a school district has provided a child with
some special-education services andthe child’s
parents believe those services are
inadequate.” Ante, at 11. But this is just
another way of reading the provision off the books.
On the majority’s reading, clause (ii) states
only that a court may awardreimbursement when (1)
there is a previous receipt of special
educationservices and (2) a failure to provide a
FAPE. Such a description of the most common subset
of a category already described may be
calledelaboration, but it still has no effect on
the statutory scheme.
6 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
vices limit on any exceptions to that general
rule whenschool officials fall short of providing a
FAPE. See §1412(a)(10)(C)(ii)
(“Reimbursement for private school placement .
. . ”).
This reading can claim the virtue of avoiding a
furtheranomaly. Section 1412(a)(10)(C)(iii), which
limits other-wise available reimbursement, is
expressly directed to“[t]he cost of
reimbursement described in clause (ii).” This
makes perfect sense under my reading. Since clause
(ii) is now the exclusive source of authority to
order reimburse-ment, it is natural to refer to it
in the clause setting outthe conditions for
reducing or even denying reimburse-ment otherwise
authorized. Yet, as T. A. and the Gov-ernment
concede, Brief for Respondent 22; Brief for United
States as Amicus Curiae 4, 17, under the
major-ity’s reading, Congress has called for
reducing reimburse-ment only for the most deserving
(parents described in clause (ii) who consult with
the school district and givepublic special
education services a try before demanding payment
for private education), but provided no mecha-nism
to reduce reimbursement to the least
deserving(parents who have not given public
placement a chance).
The Court responds to this point by doubling
down.According to the majority, the criteria listed
in clause (iii)can justify a reduction not only of
“reimbursement de-scribed in clause
(ii),” §1412(a)(10)(C)(iii), but can also
doso for a reimbursement order authorized elsewhere
as well, ante, at 11 n. 8. That is, the majority
avoids ascrib-ing perverse motives to Congress by
concluding that inboth clause (ii) and clause
(iii), Congress meant to add nothing to the
statutory scheme. This simply leads backto the
question of why Congress in §1412(a)(10)(C)
would have been so concerned with cases in which
children had not previously received special
education services when, on the majority’s
reading, the prior receipt of services hasno
relevance whatsoever to the subject of that
provision.
Cite as: 557 U. S. ____ (2009) 7
SOUTER, J., dissenting
Because any other interpretation would render
clause
(ii) pointless and clause (iii) either pointless
or perverse, §1412(a)(10)(C)(ii) must be read
to allow reimbursementonly for “parents of a
child with a disability, who previ-ously received
special education and related servicesunder the
authority of a public agency.”
II Neither the majority’s clear statement
rule nor itspolicy considerations prevail over the
better view of the1997 Amendments.
A The majority says that, because of our
previous inter-pretation of the Act as authorizing
reimbursement for unilateral private placement,
Congress was obliged to speak with added clarity to
alter the statute as so under-stood. Ante, at
8–12. The majority refers to two
distinctprinciples for support: first, statutes are
to be read with apresumption against implied
repeals, e.g., ante, at 12–13 (citing Branch
v. Smith, 538 U. S. 254, 273 (2003) (plural-ity
opinion)), and second, congressional reenactment of
statutory text without change is deemed to ratify a
prior judicial interpretation of it, e.g., ante, at
8–9 (citing Loril-lard v. Pons, 434 U. S. 575,
580 (1978)). I think neither principle is up to the
task.Section 1412(a)(10)(C) in no way repealed the
provisionwe considered in Burlington.3 The relief
that “is appropri-ate” under
§1415(i)(2)(C)(iii) depends on the substantive
provisions of the IDEA as surely as if the
provision author-
—————— 3The
presumption against implied repeals would not
justify readingthe later provision as useless even
if it applied since, when two provi-sions are
irreconcilable, the presumption against implied
repeals gives way to the later enactment. See
Branch v. Smith, 538 U. S. 254, 273 (2003)
(plurality opinion).
8 FOREST GROVE SCHOOL DIST. v. T. A.
SOUTER, J., dissenting
ized equitable relief “consistent with the
provisions of thisstatute.”4 When we applied
§1415(i)(2)(C)(iii) in Burling-ton, we
expressly referred to those provisions and
con-cluded that, in the absence of a specific rule,
“appropriate”relief included the
reimbursement sought. By introducingnew
restrictions on reimbursement, the 1997 Amendments
produce a different conclusion about what relief is
“appro-priate.” But
§1415(i)(2)(C)(iii) remains in effect, just as
it would remain in effect if Congress had
explicitly amended the IDEA to prohibit
reimbursement absent prior receiptof services.
As for the rule that reenactment incorporates
priorinterpretation, the Court’s reliance on
it to preserve Bur-lington’s reading of
§1415(i)(2)(C)(iii) faces two hurdles. First,
so far as I can tell, this maxim has never been
used to impose a clear statement rule. If Congress
does notsuggest otherwise, reenacted statutory
language retainsits old meaning; but when a new
enactment includeslanguage undermining the prior
reading, there is no pre-sumption favoring the old,
and the only course open issimply to read the
revised statute as a whole. This is so because
there is no reason to distinguish between
amend-ments that occur in a single clause (as if
Congress had placed all the changes in
§1415(i)(2)(C)(iii)), and those that take the
form of a separate section (here,
§1412(a)(10)(C)).If Congress had added a
caveat within §1415(i)(2)(C)(iii),or in an
immediately neighboring provision, I assume the
majority would not approach it with skepticism on
theground that it purported to modify a prior
judicial inter-pretation.
Second, nothing in my reading of
§1412(a)(10)(C)(ii) is
—————— 4No one,
for example, would suggest that a court could grant
reim-bursement under §1415(i)(2)(C)(iii) to
parents of a nondisabled child, but this is obvious
only because we assume §1415(i)(2)(C)(iii) is
to beread in light of the substantive provisions of
the statute.
Cite as: 557 U. S. ____ (2009) 9
SOUTER, J., dissenting
inconsistent with the holdings of Burlington and
the other prior decision on the subject, Florence
County School Dist. Four v. Carter, 510 U. S. 7
(1993). Our opinion in Burling-ton was expressly
premised on there being no “other
refer-ence” that would govern reimbursement
for private tui-tion, 471 U. S., at 369, and this
all but invited Congress toprovide one.
Congress’s provision of such a reference
in1997 is, to say the very least, no reason for
skepticism thatCongress wished to alter the law on
reimbursement. The 1997 legislation, read my way,
would not, however, alter the result in either
Burlington or Carter. In each case, the school
district had agreed that the child was disabled,
the parents had cooperated with the district and
tried out anIEP, and the only question was whether
parents who later resorted to a private school
could be reimbursed “‘if the court
ultimately determines that such placement,
ratherthan a proposed IEP, is proper under the
Act.’ ” Carter, supra, at 12 (quoting
Burlington, supra, at 369). In order-ing
reimbursement, the Court in both Burlington and
Carter emphasized that the parents took part in
devisingan IEP, 471 U. S., at 368; 510 U. S., at
12, and expressed concern for parents who had
sought an IEP before placing their child in private
school, but received one that was inadequate, 471
U. S., at 370; 510 U. S., at 12. The result in each
case would have been the same under my reading of
the amended Act, both sets of parents being
“parents of a child with a disability, who
previously received special education and related
services under the authority of apublic
agency.” §1412(a)(10)(C)(ii). It is
therefore too much to suggest that my reading of
§1412(a)(10)(C)(ii)would
“abrogat[e] sub silentio our decisions
in Burlington and Carter,” ante, at 12.
The majority argues that the policy concerns
vindicated in Burlington and Carter justify reading
those cases toauthorize a reimbursement authority
going beyond their facts, ante, at 7–8, and
would hold reimbursement possible
10 FOREST GROVE SCHOOL DIST. v. T.
A.
SOUTER, J., dissenting
even for parents who, like those here,
unilaterally resortto a private school without
first establishing at the admin-istrative or
appellate level that the child is disabled, or
engaging in a collaborative process with the school
offi-cials. But how broadly one should read
Burlington and Carter is beside the point, Congress
having explicitly addressed the subject with
statutory language that pre-cludes the Court’s
result today.
B The Court also rejects the natural sense of
§1412(a)(10)(C) as an interpretation that
would be “at odds with the general remedial
purpose underlying IDEAand the 1997
Amendments.” Ante, at 13. The majoritythinks
my reading would place the school authorities in
total control of parents’ eligibility for
reimbursement: justrefuse any request for special
education or services in the public school, and the
prior service condition for eligibility under
clause (ii) can never be satisfied. Thus, as the
majority puts it, it would “borde[r]
on the irrational” to“immuniz[e]
a school district’s refusal to find a child
eligi-ble for special-education services no matter
how compel-ling the child’s need.” Ibid.
I agree that any such schemewould be pretty absurd,
but there is no absurdity here. The majority’s
suggestion overlooks the terms of the IDEA process,
the substantial procedures protecting a
child’s substantive rights under the IDEA, and
the significant costs of its rule. To start with
the costs, special education can be im-mensely
expensive, amounting to tens of billions of
dollarsannually and as much as 20% of public
schools’ generaloperating budgets. See Brief
for Council of the Great City Schools as Amicus
Curiae 22–23. The more privateplacement there
is, the higher the special education bill, a fact
that lends urgency to the IDEA’s mandate of a
col-laborative process in which an IEP is
“developed jointly by
Cite as: 557 U. S. ____ (2009) 11
SOUTER, J., dissenting
a school official qualified in special
education, the child’s teacher, the parents or
guardian, and, where appropriate,the child.”
Burlington, supra, at 368.
The Act’s repeated emphasis on the need for
cooperativejoint action by school and parent does
not, however, leavethe school in control if
officials should wish to block effec-tive (and
expensive) action for the child’s benefit, for
if thecollaborative approach breaks down, the IDEA
providesfor quick review in a “due process
hearing” of the parents’ claim that more
services are needed to provide a FAPE than the
school is willing to give. See §1415(c)(2)
(district must respond to due process hearing
complaint within 10 days and hearing officer must
assess facial validity of complaint within 5 days);
§1415(e) (mediation is available,provided it
does not delay due process
hearing);§1415(f)(1)(B) (district must convene
a meeting with par-ents within 15 days to attempt
to resolve complaint); 34CFR
§§300.510(b)(1)–(2) (2008) (if
complaint is not re-solved, a hearing must be held
within 30 days of complaint and a decision must be
issued within 75 days of com-plaint). Parents who
remain dissatisfied after these first two levels of
process may have a right of appeal to the state
educational agency and in any case may bring a
court action in federal district court. See 20 U.
S. C. §1415(i)(2). This scheme of
administrative and judicial review is the answer to
the Court’s claim that reading theprior
services condition as restrictive, not
illustrative, immunizes a school district’s
intransigence, giving it aneffective veto on
reimbursement for private placement.5
—————— 5The
majority argues that we already rejected this
process as inade-quate in School Comm. of
Burlington v. Department of Ed. of Mass., 471
U. S. 359 (1985). Ante, at 14. That was before
the enactment of §1412(a)(10)(C)(ii). The
question in Burlington was whether the
reimbursement there was an “appropriate”
remedy under §1415(i)(2)(C)(iii). See 471 U.
S., at 370. With no statement to the contrary from
Congress, the Court expressed concern over the
possible
12 FOREST GROVE SCHOOL DIST. v. T.
A.
SOUTER, J., dissenting
That said, the Court of course has a fair point
that theprior services condition qualifies the
remedial objective of the statute, and pursuing
appeals to get a satisfactory IEP with special
services worth accepting could be discourag-ing.
The child who needs help does not stop needing it,
orstop growing, while schools and parents argue
back and forth. But we have to decide this case on
the premise thatmost such arguments will be carried
on in good faith, and even on the assumption that
disagreements about theadequacy of IEPs will impose
some burdens on the Act’s intended
beneficiaries, there is still a persuasive reason
for Congress to have written the statute to mandate
justwhat my interpretation requires. Given the
burden of private school placement, it makes good
sense to require parents to try to devise a
satisfactory alternative withinthe public schools,
by taking part in the collaborative process of
developing an IEP that is the “modus
operandi” of the IDEA. Burlington, 471 U. S.,
at 368. And if some time, and some educational
opportunity, is lost in conse-quence, this only
shows what we have realized before, that no policy
is ever pursued to the ultimate,
single-mindedlimit, and that “[t]he
IDEA obviously does not seek to promote
[its] goals at the expense of all
considerations,including fiscal
considerations,” Arlington Central School
Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 303
(2006).6
—————— length of
the IDEA review process and surmised that Congress
wouldhave intended for reimbursement to be
authorized. Ibid. But Congress provided a statement
to the contrary in 1997; the only reading that
gives effect to §1412(a)(10)(C)(ii) is that
reimbursement is not permit-ted absent prior
placement, and the only question for the Court now
iswhether Congress could have meant what it said.
6See 143 Cong. Rec. 8013 (1997) (statement of Rep.
Castle) (“This law . . . has had unintended
and costly consequences. . . . It has resulted
inschool districts unnecessarily paying expensive
private school tuitionfor children. It has resulted
in cases where lawyers have gamed the system to the
detriment of schools and children.” “This
bill makes it harder for parents to unilaterally
place a child in elite private schools at public
taxpayer expense, lowering costs to local school
districts”).
