us supreme court: 06-637

8/14/2019 US Supreme Court: 06-637

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

BOARD OF EDUCATION OF THE :

CITY SCHOOL DISTRICT OF :

THE CITY OF NEW YORK, :

Petitioner :

v. : No. 06-637

TOM F., ON BEHALF OF :

GILBERT F., A MINOR CHILD.

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Monday, October 1, 2007

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:55 a.m.

APPEARANCES:

LEONARD J. KOERNER, ESQ., New York, N.Y.; on behalf of

Petitioner.

PAUL G. GARDEPHE, ESQ., New York, N.Y.; on behalf of

Respondent.

GREGORY G. GARRE, ESQ., Deputy Solicitor General,

Department of Justice, Washington, D.C.; on

behalf of the United States, as amicus curiae,

supporting Respondents.

1Alderson Reporting Company



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C O N T E N T S

ORAL ARGUMENT OF PAGE

LEONARD J. KOERNER, ESQ.

On behalf of the Petitioner 3

ORAL ARGUMENT OF

PAUL G. GARDEPHE, ESQ.

On behalf of the Respondents 25

ORAL ARGUMENT OF

GREGORY G. GARRE, ESQ.

On behalf of the United States, as amicus

curiae, supporting Respondents 43

REBUTTAL ARGUMENT OF

LEONARD J. KOERNER, ESQ.

On behalf of the Petitioner 53




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P R O C E E D I N G S

(10:55 a.m.)

We'll hear argument next in Case 06-637,

Board of Education of the City School District of the

City of New York versus Tom F.

Mr. Koerner.

ORAL ARGUMENT OF LEONARD KOERNER

ON BEHALF OF THE PETITIONER

MR. KOERNER: Mr. Chief Justice, and members

of the Court. In 1985 when this Court decided the

Burlington decision, it based -- it based it based on

the broad remedial clause set forth in 20 U.S.C. 1415,

which allowed an impartial hearing officer, a state

review officer, or the court, itself, to grant relief

where appropriate.

In so doing, it noted that there was no

other substantive section which touched and concerned

the issue before the Court, and that is whether an

individual can voluntarily remove a child and seek

tuition reimbursement before the conclusion of the

administrative and court remedies.

It made a point of noting that it felt it

was gleaning the congressional intent; and, had Congress

known that the administrative and court process would be

protracted, it would have provided a process which would




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allow the child to be removed.

Similarly, in the sequel, the Carter case,

the Court made the other -- the same conclusion. It

noted that, although the primary responsibilities to

educate the child in a public school, least restrictive

environment, there would be occasions when you would

place that child outside, having been in the school

system.

1412, which was the eligibility section

during this period, was very truncated. It did not

provide a lot of conversation concerning the

relationship of public and private schools within the

IDEA. It provided that you had to provide the child who

demanded it a FAPE, a free appropriate education. If

you couldn't do that, the public school had to then pay

for the tuition. It was silent though on the

relationship between the private schools where the child

voluntary removes.

In 1997 the IDEA was codified, and for the

first time the specific section was inserted dealing

with the relationship of children and private schools.

Indeed, 20 U.S.C. 1412(a)(10) -- just the beginning,

just that paragraph, says "children placed in private

schools" and the structure was detailed. Subdivision

(A) dealt with the relationshiop of the private schools




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with the public system generally and noted that, in that

particular case, while the children would be entitled to

some small amount of Federal funding, they would not be

entitled in private school to a free appropriate public

education.

We also noted that if a parent was

dissatisfied with the service plan, they'd have to seek

relief administratively. They would not be entitled to

an impartial due process or a court review. It was a

recognition that children who are placed in private

school were entitled to much lesser services than

children placed in public school.

Subdivision (B) dealt with the situation

when children were not placed in public school but the

local district consented that they could not provide a

free appropriate public education. As a consequence, in

those cases and in only those cases, since the public

would then be supervising and directing the private

school, they would be responsible for the tuition.

Sub (C) is the issue now before this Court.

Sub (C) is entitled Children Placed in Private School,

Payment and Where the Local Education Aagency Did Not

Consent. And that particular section is broken down

again into three parts. The first part says, if a child

is offered FAPE, that is, a child is given a program




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which is adequate, you cannot get reimbursement if you

remove your child during any time but in this case

during the pendency of the administrative and the court

process.

CHIEF JUSTICE ROBERTS: Counsel, do you

agree that if we conclude the language is ambiguous, we

should defer to the Secretary's interpretation in the

comments accompanying the regulations?

MR. KOERNER: The answer is no because the

Secretary's interpretation on the note in common and the

letter submitted to the educational consultant is

inconsistent with its own Federal regulation. Its

Federal reguation, titled Children Placed in Private

Schools When FAPE Is at Issue, also requires that you

previously receive --

CHIEF JUSTICE ROBERTS: It just mirrors the

statute --

MR. KOERNER: That's exactly -- it does.

CHIEF JUSTICE ROBERTS: Well, then --

MR. KOERNER: But the note --

CHIEF JUSTICE ROBERTS: Assuming we would

think the statutory language is ambiguous, we are likely

to think the same language in the regulation is

ambiguous.

MR. KOERNER: Well, Chief Justice, if it's




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ambiguous and we ought to at least discuss the nature of

the ambiguity, then that ambiguity under the spending

clause should redound to the benefit of the local

education district as well, for if it does not set forth

CHIEF JUSTICE ROBERTS: Well, which -- which

prevails, Chevron deference or spending clause

presumption?

MR. KOERNER: Well, the Chevron deference

requires notes and comments which are persuasive and

analyzed. There is absolutely no analysis in the note

and comment in this case. All it says conclusively is

that the decisions of this Court in Burlington and

Carter create an independent obligation separate and

distinct from the statute. It doesn't explain why the

specific language of the statute should not be

incorporated in the Burlington court. And --

JUSTICE ALITO: If Gilbert F. had attended

the public school for 11 days, would this case come out

differently, in your view?

MR. KOERNER: I'm sorry.

JUSTICE ALITO: If the student here had

attended the public school for let's say 11 days before

being transferred to the public -- to the private

school, would your, would your arguments still fly?




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MR. KOERNER: No. If the -- if the child

attends a public school and receives special education

and related services --

JUSTICE SCALIA: You've added something to

the question, though, didn't you?

MR. KOERNER: No, I don't think so.

JUSTICE SCALIA: Attending public school and

receiving --

MR. KOERNER: I -- I thought, I'm sorry --

JUSTICE ALITO: Well, that was my

assumption. Let's say he attends public school in a

special education class for 11 days. His parents think

the public -- the placement that's proposed, the IEP

that's proposed by the school is inadequate, and they

turn out to be correct, and they want to send their

child to the private school, but they understand this

argument based on the statutory language, so they say

all right, we are going to put him in the public school

special education class for 11 days, so -- we've already

got the placement in the private school all lined up at

the end of the 11 days. He goes one day, we give

notice; we take him out and we put him in the private

school; then they are entitled to reimbursement subject

under your argument.

MR. KOERNER: That -- that would satisfy the




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statutory definition, but when it went before the

impartial officer, or the State review officer, there

would be a very compelling argument that there was a

lack of cooperation, because it's not just that you're

in the system, but that you articulate the problems that

you have with the public placement.

CHIEF JUSTICE ROBERTS: Well, it depends on

the particular circumstances. I mean, if the parent is

able to show look, the school district is being very

unreasonable here; it's clear he is going to need more

than the services they were going to offer, well that

wouldn't have --

MR. KOERNER. Yes.

CHIEF JUSTICE ROBERTS: -- run afoul of any

of the other provisions.

MR. KOERNER: My only comment, Chief

Justice, was that yes, that would satisfy the statutory

section as long as the notice was given in triple I, but

we would then have an argument in the individual case

that the parent was not cooperating. So for the purpose

of this case, where they come into the system even for a

minimum period and give the appropriate notice under

triple I, yes, that would -- it would be satisfied.

JUSTICE ALITO: Well, why would Congress

ever have wanted to adopt a scheme like that? What




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possible purpose is served by simply requiring the

student to be in a placement that is by definition not

providing a -- not providing FAPE for this very short

period of time? It makes no sense whatsoever.

MR. KOERNER: The reason Congress wanted to

provide it is the reason that this Court discussed in

Burlington. The upset of this Court in Burlington was

that it was an extremely protracted process. The child

there was subject to a very long impartial hearing and

State review and court review --

JUSTICE GINSBURG: So that enabled the

parent to remove the child immediately and risk that --

MR. KOERNER: That's correct.

JUSTICE GINSBURG: -- the public education

would be found inadequate.

MR. KOERNER: But the reason --

JUSTICE GINSBURG: But all that section does

is to repeat the Burlington scenario. It says, it

codifies what the Court held. The Court didn't say

anything in Burlington about the situation where the

child was never in public education.

MR. KOERNER: That's correct, but it's a

statute of limitations. It says that you must receive

special education and related services. There is no --

there is no exception to the condition -- if you look at

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Alderson Reporting Company



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the particular statute when they refer to "may," they

are only talking about the relief that a court or

impartial hearing officer or State review officer can

grant. They are not talking about the predicate, you

must be in the system.

Now you asked, Justice Alito, why do they

have to be in the system, and the reason is Congress

thought that if you're in the system and you have a

vested interest in the system, that because of all the

processes that are there, including mediation, including

a modified IEP, that it would increase the numbers of

people in terms of cooperation who want to participate

in the system.

JUSTICE SCALIA: I thought it wasn't that.

I thought it was simply Congress figured that there are

probably a lot of people in New York City, in Manhattan

in particular, who are going to send their kids to

private school, no matter what, and they can get special

services in private school, but what the heck, if we can

get $30,000 from the city to pay for it, that's fine.

In other words, this was meant to be an

option for people who wanted to go to the public schools

but couldn't go to the public schools because they

couldn't get the private services there, but it was

never meant to be an option for people who had no desire

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to go to public schools at all anyway, and --

MR. KOERNER: I think --

JUSTICE SCALIA: -- and without this

condition, somebody, I think the plaintiff here was

never in the public school, was he?

MR. KOERNER: That's correct. He never had

any contact with the public school at all except to

request a free appropriate public education.

JUSTICE GINSBURG: Are there not children --

I think there was a brief on behalf of the Autism

Society that says many school systems simply do not have

the facilities to attend to the needs of these children?

MR. KOERNER: Yes, but you don't know that

until you've actually been subjected to the process

itself. Indeed in Schaffer, you, this Court said that

you had to presume that the officials in the department

of education of a local school district are going to do

their job. Their job is to try to find an appropriate

IEP. If it turns out that it's insufficient, of course

you can then litigate.

JUSTICE GINSBURG: Are there not cases where

school districts have said from day one, look, we don't

have facilities to handle this type of disability?

MR. KOERNER: But if we don't -- if the

public schools district does not have the facilities,

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then it will consent to a private placement to deal with

the particular problem it cannot deal with. We are only

talking about cases where the school system believes it

can deal with an individual problem and at the very

least if the person's child comes into the system, they

will have the opportunity to work with the parent and

try to work out a situation. In -- as this Court is

well aware, the primary obligation is to find a public

education for this child, and if from day one you assume

that the individual education plan is defective, not

only is it inconsistent with Schaffer, it's inconsistent

with the whole statutory scheme which is set up to try

to work cooperatively. Indeed --

JUSTICE GINSBURG: But isn't it true that

the parent will never be reimbursed? Let's take the

parent that Justice Scalia has hypothesized, will never

get one penny of that tuition unless that parent carries

the burden -- the parent would have the burden of

showing that there was no appropriate public education?

MR. KOERNER: The parent in this case can

never get reimbursed because they don't meet the

predicate which is that their child had to previously --

JUSTICE GINSBURG: That's not the question I

asked.

MR. KOERNER: Oh I'm sorry.

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JUSTICE GINSBURG: I said that the parent --

let's assume that the parent never sends the child to

public school, nonetheless seeks reimbursement. In

order to get reimbursement that parent would have to

show, would have bear the burden of showing that there

is no appropriate public education available; is that

not true?

MR. KOERNER: Yes. You mean assuming the

statute does not apply?

JUSTICE SCALIA: Yes, but that is -- but the

parent would not have to show that the parent would have

used that available public remedy --

MR. KOERNER: That's correct.

JUSTICE SCALIA: -- if it were there?

MR. KOERNER: And Congress could have

concluded that the parent you're referring to who placed

that child immediately in a private school, and who may

not have an interest in obtaining a public school

education for that child, may not be as cooperative and

as collaborative as someone who has a child in the

system, to work out an individual education plan because

of some of these --

JUSTICE GINSBURG: Then the conclusion would

be that that parent hasn't met the heavy burden of

showing that there is no appropriate public education.

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MR. KOERNER: But the problem is, if you go

to an impartial hearing officer as in this case, and you

have a child that's been in a private school for a

number of years and is doing very well, and the private

school special ed teacher comes in and highlights all

the successes of the kid, and then the New York City

Department of Education comes in with is profit plan

which is based on speculation, because the child has

never been in the system, is it so unreasonable for

Congress to conclude as a matter of statutory, explicit

language that the child should go into the system so

that at least with respect to your burden there's at

least a participatory program where they try to help the

child get an individual education.

JUSTICE ALITO: If Congress's purpose really

was what you -- what you suggest and what I think

Justice Scalia's question suggests, that there was a

desire to make parents who really had no interest in the

public school system give the public schools a chance,

why is it that, even as you read the statute, there's no

requirement that the child remain in the public school

system for any significant period of time? It's just

pro forma.

MR. KOERNER: Indeed, Justice Alito.

Congress in this case got it completely right because

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not only did they put in the explicit language, they

also put in a time period because they understood that

this Court had ruled in a number of cases that its upset

was with the protracted period that a family has to have

a child in the system. But by having a notice provision

and by thereby ensuring a parent that by giving notice

and specifically articulating the reason why the plan is

deficient and giving the school district an opportunity

to cure the problem, everybody would understand 10 days

later that they can leave. So the very problem that you

highlighted in Burlington and Carter is no longer a

problem under the explicit legislation.

CHIEF JUSTICE ROBERTS: I think they may --

they may well have to stay longer than 10 days to either

realize that the program is inadequate or to feel

comfortable that they'll be able to establish that on

the record. It's pretty hard to say something's not

working after only on 10 days.

MR. KOERNER: Chief Judge, you're absolutely

right. And that is why I say that would be based on an

individual determination. All the statute says is come

into the system. What happens after that, if you give

your notice as was raised in a hypothetical, that would

go to whether or not there was the duty to cooperate

which was fulfilled, which also is a requirement for

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this particular section for reimbursement.

It's not just that you are in a program and

private school is providing appropriate service and then

you have an IEP that may not provide the free

appropriate public education, but you also have to show

you cooperated with the program because the whole

primary purpose of the program is to provide a public

education.

JUSTICE SCALIA: Of course, to be fair, this

provision doesn't just apply to the rich person who

wants New York City to pay 30,000 of his tuition to a

private school. It also applies to somebody who is

already in public school, and the program offered by the

-- by the city is patently inadequate. You are

compelling the parent nonethe less to put the kid in a

program that anybody would see will -- will not meet the

needs.

MR. KOERNER: That is correct, but your --

first of all, Congress could weigh the balance between

that particular problem and the need to give the school

district an opportunity to try to provide a program, but

it does run contrary to this Court's discussion in

Schaffer which presumes that the school district is

going try to accommodate the child, try to provide the

needs of the child.

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In effect, I think all of these questions

are based on the assumption that the plan is going to be

automatically deficient. I don't believe there's any

foundation this Court has indicated there's no

foundation. That's why it said in Schaffer that the

parent has the ultimate burden of persuasion because it

presumed that the plan -- if you accept that principle,

which has already been articulated and you accept the

fact that specialists on the Board of Education have --

are going to try to adjust to this kid's needs, then

having the kid in the system even for a short while is

something that Congress could determine. And indeed

that's what the language says.

Now, we recognize that there is an absurd

argument, but it was difficult for us to understand how

it would be absurd to require this when indeed it would

solve the problems of Burlington and Carter because it

makes sure that if a parent doesn't want to stay for a

protracted period, it doesn't have to stay and then they

can litigate later. As Judge Alito noted, it would be

as little as 10 days.

I mean some arguments -- some of the

arguments I should at least mention that the other side

has made: The chief -- in the Second Circuit, the

argument was that there was an ambiguity because the

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word "only"0 wasn't used. So if I may use the example

that an individual may be eligible for welfare

recipients -- welfare benefits if that individual

previously received food stamps, the argument would be,

well, that's a little ambiguous because you didn't say

"only received food stamps." Of course, the condition

doesn't have to have "only" and it probably undermines a

lot of statutes that Congress has passed. The language

is very, very clear.

The second argument that is made both by the

Solicitor General and Respondent is that there's been an

-- implied repeals of this Court's decisions in

Burlington and Carter. But an implied repeal is when

you have two statutes that are specific and the latest

specific statute is inconsistent with the earlier

specific statute. These courts' decisions were based on

a general remedy provision and, more importantly, this

statute encompassed what this Court held because it

provided that you can remove your child once in the

system and the notice provision provides that you don't

have to be in the system very long.

JUSTICE ALITO: Is there any suggestion in

the reasoning in the Burlington case that it was limited

to a situation in which the student had been receiving

public school special education?

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MR. KOERNER: No. But it was a holding

where the student was in fact receiving special

education. The next case, of course, would have been

one where the -- now, a more interesting question would

have been raised if you had (iii) and not (ii). If you

only had the notice provision where Congress

contemplates you have to be in the system to give

notice, and I came to this Court and I said, under

(iii), Congress has really contemplated you have to at

least be in the system for a short amount of time. You

didn't have (ii), which clarifies exactly what Congress

said, and this Court would have to then consider whether

or not (iii), by itself, would be -- would create enough

of an ambiguity in its (inaudible) decisions or whether

or not (iii) could be enforced without referring to (ii)

because why do you give notice?

Think about the result in this case. For

someone in the system, they have to give notice and an

opportunity to cure, and the IEP can be modified. If

you're not in the system and you never had any interest

in the system and you sought tuition reimbursement, you

would have less of a bureaucratic process. There would

be a preverse incentive to stay outside the system. You

wouldn't have to give notice. You would just have to --

CHIEF JUSTICE ROBERTS: Oh, I don't think

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that's true, because the problem would be you would go

to the hearing to see if you were getting the adequate

education and you would have -- you would essentially

have to make a facial challenge rather than an

as-applied one, and the school would say, well, you

didn't give us a chance; we were going to do this and we

were going to do that. So it would be a heavier burden

to carry. The parents would have a heavier burden.

MR. KOERNER: But that would --

CHIEF JUSTICE ROBERTS: -- if they did --

MR. KOERNER: But that would be an

individual determination, Chief Judge. What I'm saying

though, for everybody in the system, it doesn't depend

on an impartial hearing. You have to give notice

before you get to the next step. If you're outside the

system, you don't have to participate in any process

other than to seek at an impartial hearing the right to

get reimbursement. So that actually there's less

bureaucratic processes outside the system, and there's

and incentive (1) not to cooperate and (2) just to

marshal all your arguments in the impartial hearing and

hopefullyl you're going to prevail and get the payment

for the private education; whereas, if you're in the

system --

CHIEF JUSTICE ROBERTS: No, my suggestion is

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still that it would be easier to prevail at the

impartial hearing, if you can say, look, we tried, it

didn't work, as opposed to saying, we never even tried.

MR. KOERNER: Except for --

CHIEF JUSTICE ROBERTS: If I were the

impartial hearing examiner, I would think that that's a

harder burden for the parents to carry if they didn't

even try. The school's going to come in and say, here's

what we would have done if you'd given us a chance and

you didn't give us a chance.

MR. KOERNER: But there is a dynamic at

these hearings that, if you come in and that you're in a

private school and you show that your child is doing

well in the private school, and we come in with a

theoretical plan that has never been implemented, there

is going to be a dynamic with the impartial hearing

officer who will tilt towards keeping the child --

JUSTICE GINSBURG: What is the basis for

saying that, when the one thing that the statute is very

clear on is that the starting premise of any

reimbursement claim is that an appropriate public

education is not available? That wouldn't concentrate,

testing that wouldn't concentrate on what the private

school is doing but what the public school could do.

MR. KOERNER: You're right, Justice

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Ginsburg. I was only commenting on the dynamic. Of

course, we would try to show it, but we can't show it

based on -- any actual interaction with the child. We

can't show we observed the child in the school and tried

to make the following modifications.

JUSTICE GINSBURG: But you don't have the

burden; the parents do.

MR. KOERNER: Yes. That is the technical

relationship. That's right. I'm talking more about --

JUSTICE SCALIA: The parent would presumably

cover themselves, look it, he's getting X,Y -- X, Y, and

Z in the private school and you're going to give him Z;

Z is not going to be enough. And the burden on you

would be upon you to say, oh, we think Z is enough.

MR. KOERNER: That's correct. But, of

course, what we're saying has no actual practice.

But all this is separate and distinct from

the language of Congress. And unless that language is

observed, it does require that you have to previously

receive special education related services.

JUSTICE BREYER: What about an exception if,

in fact, the school district admits that they can't do

anything for this child?

MR. KOERNER: Well, then, Your Honor, that

comes under Section B of the same section, 20 U.S.C.

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1412(a)(10)(B), where the school district does not

believe it can provide the service, then it will consent

to a private school and will give reimbursement because

that will be the equivalent of the free appropriate

public education. We are just talking about cases where

there has not yet been -- where the school believes they

can provide it. The parent and the child disagree.

Now, there are two other arguments that I

want to address. One, recognizing that the language

seems to support the petitioner's position. They argue

that, in fact, they did get special education and

related services because for the years 1997 and 1998 and

1998-1999, we settled with them and we did pay the

tuition. But Paragraph 17 of each of those agreements

specifically provided that the settlement was not to

create any admission for future applications.

And as this Court is aware, both under the

Federal Rules of Evidence in its decisions in Arizona v.

Colorado and the U.S. First International Building

Company, if you settle, it has no probative value. All

you do is settle the specific claim. You don't settle

the legal issue.

The second argument they make is, well, we

have got an IEP. An IEP is a proposal of how we would

service the child. And that IEP would constitute a

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special education and related service. But an IEP which

the parent rejects could never be a special education

related system. You have to be in the system receiving

it.

And indeed, in Section 1414 of U.S.C., it

specifically provides if you reject the IEP, you've

waived any right to a free and appropriate public

education. So once you do that, it ends the discussion.

I have a few minutes and I'm going to

reserve that time for a possible reply.

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Koerner.

Mr. Gardephe.

ORAL ARGUMENT OF PAUL G. GARDEPHE,

ON BEHALF OF RESPONDENT

MR. GARDEPHE: Thank you, Mr. Chief Justice,

and may it please the Court.

When a child with a learning disability has

been denied a free and appropriate public education,

which is what happened here, IDEA authorizes an award of

private school tuition reimbursement, whether or not the

child previously receives special education related

services under the authority of a public agency. The

Board's argument that it can both deny space and remain

not liable for private school tuition reimbursement is

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not compatible with the statute or with this Court's

jurisprudence. 1412(a)(10)(C)(ii) did not overrule

Burlington and did not impose the Hobson's choice in

that case.

JUSTICE SCALIA: What did it do, then? What

meaning do you give to it?

MR. GARDEPHE: Your Honor, Congress was

focused on the public school context. And the language

in (C)(ii), which refers to previously received, is

intended as a setup for (C)(iii). When you get to

(C)(iii), you get the notice requirements. That's what

Congress had in mind. That's why the reference is

there.

JUSTICE SCALIA: I don't understand that.

It makes it very clear it is, it is (ii) which

authorizes the enrollment in a private school and

payment for that. And it is prefaced with a condition:

If the parents of a child with a disability who

previously received special education and related

services under the authority of the public agency,

enroll the child in a private -- the implication is if

there were parent of a child who was not so enrolled,

this provision does not apply. So then you fall back on

the fact that the old provision covered in our cases

would have applied but that makes this meaningless.

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I mean if you say that our prior cases

overrode that limitation, then what purpose does the

limitation serve?

MR. GARDEPHE: Your Honor, the first

question is whether that is intended to be exclusive.

And I don't think it was, because the "only if" language

is not there. And the "only if" language is actually

used in IDEA in multiple places. And Congress knew how

to say only if it intended, if it intended --

JUSTICE SCALIA: Where else does it say that

the city will pay for the cost of a private education

except there? That's the only place it says it. And

part of the requirements for getting it is that the

child was receiving service at a public institution.

MR. GARDEPHE: Your Honor, Congress did not

intend that exclusive language. If it had, it would

have used the "only if" language.

JUSTICE SOUTER: Then why didn't Congress

adequately give the equivalent of what you call the

"only if" language when it began (iii) by saying the

cost of reimbursement described in clause two? The

reimbursement described in clause two is described in

terms of the clause that Justice Scalia is zeroing in

on.

MR. GARDEPHE: Because, Your Honor, the

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context is public school. That is the situation that

Congress was seeking to address, and that's why you

have --

JUSTICE SOUTER: I'm sorry. I'm just not

getting this. Can you rephrase that?

MR. GARDEPHE: Yes. If you look at

(C)(iii), Your Honor, it obviously repeatedly refers to

prior to the removal of a child from the public school.

So Congress was clearly focused on and it was intending

to give guidance to the courts in their equitable -- in

exercising their equitable powers. So in the context of

a child who was in public school, these are the types of

notice and cooperation things the court should take into

consideration.

The question, Your Honor, is whether they

intended this to be the exclusive vehicle by which

tuition reimbursement could be obtained? And the answer

to that, Your Honor, is no. And the reason why the

answer is no is because there is no "only if" language.

CHIEF JUSTICE ROBERTS: So you read --

hypothesize two statutes: One, the statute before the

phrase "who previously received special education" was

added and the statute after? You read both of those

statutes the same way; right?

MR. GARDEPHE: No, Your Honor, I don't.

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Because the question is, does that language serve any

purpose? And my answer to that, the language in

(C)(ii), "previously had received," yes, it serves the

purpose. The purpose is it gives factual context for

what comes in (C)(iii).

The other thing I would like to say --

CHIEF JUSTICE ROBERTS: I don't understand.

You read "who previously received special education

services," and you say that includes who previously did

not receive special education services.

MR. GARDEPHE: No. What I'm saying is that

that provides the context for what follows in (C)(iii).

The context it provides is --

CHIEF JUSTICE ROBERTS: There would be no

reason for Congress to put that language in if the same

right to reimbursement existed if the child had not

previously received special education services.

MR. GARDEPHE: No, Your Honor. The point of

that language is to provide the backdrop for (C)(iii)

where Congress did intend to give guidance to courts in

the exercise of the equitable --

CHIEF JUSTICE ROBERTS: Because your friend

reads that the exact opposite way and says, since

(C)(iii) only makes sense if the child is in the public

school, that that's a limitation on how you should read

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(C)(ii).

MR. GARDEPHE: I understand that, Your

Honor. But the question is whether -- it really boils

down to if Congress intends to address the full --

CHIEF JUSTICE ROBERTS: In that case, isn't

it pertinent that the title to (C)(ii) says

"Reimbursement for Private School Placement"? It

doesn't say reimbursement for private school placement

when the child previously attended public school.

MR. GARDEPHE: But, Your Honor, (C)(ii) is

not exhaustive. Let me give an example.

I'm sure this Court would agree that the

requirement, the second requirement in Burlington that

the private placement has to be appropriate is the law

in this land. And (C)(ii) doesn't set forth that

requirement. (C)(ii) does not set forth that

requirement. And what that says to me is that (C)(ii)

was never intended by Congress to be exhaustive.

CHIEF JUSTICE ROBERTS: That just means that

(C)(ii) doesn't address the entire universe of issues

that might arise. But that doesn't mean that it doesn't

address exactly what its title says, "Reimbursement for

Private School Placement."

MR. GARDEPHE: Your Honor, I believe it's

probative on the issue of whether Congress intended

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(C)(ii) to set forth the requirements for private school

tuition reimbursement and all the factual context in

which that could be rendered.

I do want to address one point, which is

that did Congress deal with this issue later? That is

to say, in terms of the notice factors that it set forth

in (C)(iii), which I have argued to you applied to

parents whose children have been in public school. The

answer to that question, Your Honor, is, yes, they did.

They addressed it in 1415(f)(1)(B), which require the

2004 amendments to IDEA.

CHIEF JUSTICE ROBERTS: Where is that set

forth?

MR. GARDEPHE: 1415(f)(1)(B) -- I'm sorry,

Your Honor, it's not in the appendix to the solicitor

general's brief. But at 1415(f)(1)(B), Your Honor, what

that provision requires is that parents, prior to a due

process hearing, must meet with the IEP team, they must

meet with the school district, they must lay out their

complaints about the IEP, and the statute provides give

the school district an opportunity to resolve the

complaint.

So Congress did not deal with the full

waterfront in the 1997 amendments. It returned to this

issue in 2004 and imposed those notice and cooperation

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requirements that, as I've argued to you --

CHIEF JUSTICE ROBERTS: Were those

provisions at issue when this dispute arose? They are

the 2004 amendments --

MR. GARDEPHE: These were 2004 amendments,

Your Honor.

JUSTICE STEVENS: You haven't identified the

statutory provision that you think provides the

authority for the payment in this case.

MR. GARDEPHE: Your Honor, I believe it

begins with 1400(d)(1)(A) and 1412(A)(1); both of which

impose the requirement on school districts to make

available the free and appropriate public education for

the child. I believe it begins there. It then

continues to 1415 (i)(2)(C)(3), which is the provision

that grants courts to -- sorry, grants such relief as

the court determines is appropriate. There is no

evidence either in the 1997 amendments or in its

legislative history that there was an intent to appeal

or override that remedy.

CHIEF JUSTICE ROBERTS: I suppose it's how

broadly you read legislative history. I thought there

was a statement by Representative Castle that this would

limit the payments that school districts had to make.

MR. GARDEPHE: Yes, Your Honor, and I think

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with respect to the children in the public school

system, if you read (C)(3) -- and again these are

permissive -- but if (C)(3) is applied, then I think

Representative Castle's comments make perfect sense

because they provide for certain notice obligations.

CHIEF JUSTICE ROBERTS: So when it comes to

reimbursement of tuition, the parents who never place

their child in the public school are in better shape

than the parent who place their child in public school

and then want to remove him.

MR. GARDEPHE: No, Your Honor. And the

reason for that is, there was case law preceding the

1997 amendments that imposed reasonableness

reasonableness and cooperation requirements on parents

even before the 1997 amendments came into effect. As I

did mention, after 2004 those requirements were now

statutory, but the reality is as a matter of case law,

it was already very clear in 1997 that if you didn't

give notice to the school district, if you didn't

cooperate in the formation of an IEP, you were not going

to get tuition reimbursement. And of course that flows

directly from, in particular, Carter's statement that

the reimbursement remedy is subject to equitable

considerations.

So it has always been the law that if a

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parent does not cooperate, does not give notice, does

not cooperate in the formation of an IEP, that they will

not get -- or that the court has the discretion to deny

the tuition reimbursement remedy.

CHIEF JUSTICE ROBERTS: But cooperation does

not require sending the child to the public school.

MR. GARDEPHE: No, Your Honor. I think it's

clear that Congress never intended, to quote Justice

Scalia, that parents would be required to place their

child in a patently inappropriate placement in order to

qualify for tuition reimbursement, and to address

Justice Alito's point, Your Honor, we don't know --

whether it's 10 days or 11 days or 1 day -- we don't

know. We can draw some guidance, I suppose, from the

ten- day requirement in (C)(3), but that's by no means

clear. The parents can give notice ten days before the

school day begins -- a school year began -- that they

find the placement inappropriate. So this --

CHIEF JUSTICE ROBERTS: Well in my case they

would note have received any benefits, under the terms

of the statute.

MR. GARDEPHE: But Your Honor, it highlights

that if they can place the child in for one day, this is

an utterly meaningless provision that Congress never

could have intended to require because it serves no

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purpose. And that's --

CHIEF JUSTICE ROBERTS: That's why your

friend says it serves the purpose of helping to make

clear that the public school is -- whether it is or is

not able to provide the appropriate public education. I

mean, why would Congress have put the phrase in there --

even if it was describing as you say the most common

situation -- why would it put the phrase in there if it

doesn't serve that purpose at least?

MR. GARDEPHE: Let me give an example that

highlights my point. I place my child in the

kindergarten in public school for one day. I then

satisfy the statute, previously have received special

education-related services. Five years later I can

still rely on that. Ten years later, I can still rely

on that. It's a talisman. It can't --

CHIEF JUSTICE ROBERTS: What you're saying

is it's not a very significant hurdle, but it is going

to be a hurdle in some cases.

MR. GARDEPHE: It doesn't serve any useful

purpose, Your Honor, and if it doesn't serve any useful

purpose there is no reason to believe that Congress

intended it to have that effect.

CHIEF JUSTICE ROBERTS: The useful purpose

it serves is allow the school district to show what it

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can do in ten days, as opposed to a mere theoretical

statement, it allows some actual concrete practice to

see if the plan that the public school has developed is

going to work or not going to work, that the impartial

hearing examiner can evaluate in a more concrete

setting.

MR. GARDEPHE: This Court has addressed that

balance in Burlington, and the answer was no, the

statute does not require that parents place their child

in an inappropriate place.

CHIEF JUSTICE ROBERTS: But then the whole

point is the statute was then amended after Burlington.

So to say what Burlington interpreted, it don't seem to

me to be very compelling on the question of what the

amended statute provided.

MR. GARDEPHE: But again, Your Honor, there

is no evidence in that amendment that it was intended to

be exclusive or intended to be exhaustive of the

circumstances and factual context.

JUSTICE SCALIA: I'm not sure I agree -- Im

not sure I would agree with you that you could get

special services which --in third grade and then come

back 10 years later and get private school tuition. I

would really read this as saying if the parents of a

child who previously received special education under

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the authority, enroll the child in a public elementary

school -- I think that there has to be a temporal

connection between the prior receipt and the enrollment.

I don't think you can go back 10 years.

MR. GARDEPHE: Let me go back --

JUSTICE SCALIA: You don't have to read it

that way, anyway.

MR. GARDEPHE: Let me address that, Your Honor.

What that would mean, then, I suppose, is that parents

would be required each year to put their child in a

public school for some period of time to qualify, and

then place their kid in private school if they didn't --

and then you're talking about a disruption --

JUSTICE SCALIA: Once you're in the private

school reimbursement you're in the private school

reimbursement, but you can't get into it 10 years later.

Anyway, that issue is not -- not before us today.

I don't understand you assertion that

somehow this would amount to repeal by implication. The

provision of 1415 -- what is it, (b), (b)(3) -- it seems

to me is just like a provision for, for a court's

exercise of its equitable powers. "Shall grant such

relief as the court determines is appropriate" -- if a

court had granted some equitable relief in one case, and

then there is a statute that's passed which renders that

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equitable relief no longer appropriate, I wouldn't say

that that -- that that amounts to a repeal by

implication. It's just that what is appropriate depends

upon the remainder of the statue, and as it exists at

the time that the relief is sought.

MR. GARDEPHE: The point we are trying to

make, Your Honor, is that in light of Burlington, which

obviously Congress had knowledge of when it enacted the

1997 amendments, is it credible to believe that they

would have restricted, limited, overruled the holding of

Burlington, and never said a word about it?

JUSTICE BREYER: But they have (b). What

about (b)?

See look, there are two situations.

Situation (a) is that the school district thinks they

can give them a good education, adequate. Then he

should go and try it out, and if by the way the school

district just can't do it, then (b). So what's been

wrong with that scheme? Why doesn't that cover the

waterfront?

MR. GARDEPHE: There is no evidence that

Congress intended a tryout period.

JUSTICE BREYER: Just the language -- the

language.

MR. GARDEPHE: It's not just language.

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JUSTICE BREYER: The language plus the fact

that nobody can think of a reason for putting that in

there, unless that's the --

MR. GARDEPHE: And it's the context that

flows from Burlington, where the Congress was aware that

this Court --

JUSTICE BREYER: But my question was what

about (b)? My question was not to argue with you. My

question was, why doesn't (b) take care of the examples

of absurd situations, law situations that you've

mentioned?

MR. GARDEPHE: I'm sorry, I'm not

understanding B, Your Honor.

JUSTICE BREYER: The case where the school

district just can't do it.

MR. GARDEPHE: Right.

JUSTICE BREYER: If they just can't do it

then their job is to put the kid in a district --

MR. GARDEPHE: Right.

JUSTICE BREYER: -- in a place that can do

it. And if their argument, which is your case, is it

they object to the facility, then have an argument about

that, about whether it should be this private school or

that private school. That's what it seems to me your

case is about, and that's why I think B.

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MR. GARDEPHE: In a perfect world, Your

Honor, school districts who are confronted with a

situation would always make the decision to place the

child in private schools at public expense, but

unfortunately there are disagreements between school

districts and parents about what is appropriate, and

then sometimes school districts don't do what they are

supposed to do under the statute and in fact the city's

interpretation here would incentivize school districts

not to provide services because if they never provided

services they wouldn't be liable for the reimbursement.

Again, this can't be what Congress intended.

I did want to back up my assertion about the

only --

JUSTICE BREYER: (b), that's my question,

(b). I thought you were right. Until I heard that.

Then I suddenly hear no, that don't worry about it,

judge, is what I heard, because in the situation where

the school district has not provided there is another

section of the statute that takes care of the child.

That's what I want to hear your response to.

MR. GARDEPHE: Your Honor, that relies on

the good faith of the school district. (b) relies on,

(a)(10)(B) and B relies on the good faith of the school

district to make a determination that they can't provide

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the services. That's not always going to happen. There

may be -- there may be a disagreement about whether they

can provide the services or not between the school

district and the parents.

CHIEF JUSTICE ROBERTS: You have review

before the impartial hearing examiner about that alleged

bad faith, correct?

MR. GARDEPHE: Pardon me?

CHIEF JUSTICE ROBERTS: You have reviewed

before the Hearing Examiner that alleged bad faith on

the part of the school district.

MR. GARDEPHE: Yes, Your Honor. Obviously,

the parents contend both that the plan was not

appropriate, and that it wasn't offered in good faith.

But I -- I did want to back up my assertion on the "only

if" language and -- and recite some statutory

references. Because I believe it stems very clearly

from the statute when you go through the provisions.

"Only if" or "only" are used in many, many

places 1415(f) (3)(E )(ii), 1414(a)(1)(C)ii,

1411(b)(1)(A ), 1401(19)(C), 1415(k)(4)(C) in the '98

version of the statute, 1413 --

JUSTICE SCALIA: Bingo. You got me on that.

MR. GARDEPHE: The point is, Your Honor,

that Congress knew how to say "only if." They didn't do

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that here, because they had no intention of creating an

exclusive remedy.

And this Court said in Winkelman that courts

should be cautious in reading into the statute an

implicit limitation, and this limitation goes to what

the Court also said in Winkelman is the primary mandate.

Finally, Your Honor --

CHIEF JUSTICE ROBERTS: And what was that

primary mandate?

MR. GARDEPHE: The primary mandate was to

provide or -- or make available a free and appropriate

public education to every child with learning

disabilities.

CHIEF JUSTICE ROBERTS: There is no issue of

mainstreaming in this case at all; right?

MR. GARDEPHE: There is not, Your Honor.

CHIEF JUSTICE ROBERTS: Neither of the

options are mainstream options?

MR. GARDEPHE: That's correct, Your Honor,

and that's at Second Circuit Appendix 168.

The school district here said tnat the

child's disabilities could not be addressed in a

mainstream setting, so there is no mainstream issue

here.

Finally, Your Honors, when Congress here

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chose to carve out populations of children, it did that

in a very, very direct way. It did that in

1412(a)(1)(B) where it lays out very limited exceptions

for children who do not receive the guarantee with

respect to a free and appropriate public education.

The limitation is very, very clear. It's

very, very limited to certain age groups where it would

be inconsistent with state law, or there is an

incarcerated child. But there is no other place that

Congress carved out populations of children other than

in 1412(a)((1)((B), and there is no reason to believe

that Congress intended in a backdoor fashion to carve

out the populations of children, some of which were

mentioned in the argument of my adversary.

Congress was aware --

CHIEF JUSTICE ROBERTS: You know, it -- I'm

sorry.

MR. GARDEPHE: Your Honor, my time is up.

Thank you very much.

CHIEF JUSTICE ROBERTS: So is mine. Thank

you, Mr. Gardephe.

MR. GARDEPHE: Thank you.

CHIEF JUSTICE ROBERTS: Mr. Garre.

ORAL ARGUMENT OF GREGORY G. GARRE,

ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE

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SUPPORTING RESPONDENT

MR. GARRE: Thank you, Mr. Chief Justice,

and may it please the Court:

Petitioner takes the position that a school

district may both refuse to provide a child with a

disability with an appropriate public placement and

refuse to pay for an appropriate private placement.

This Court has twice before considered and

twice before unanimously rejected --

JUSTICE SCALIA: No, he hasn't -- he hasn't

said that.

MR. GARRE: I think he does in the sense,

Your Honor, Justice Scalia, that the -- the school

district can take the position, even if the IET that is

proposed is inadequate and it's adjudicated to be

inadequate, because the Schaffer presumption that was

brought up earlier does not apply in this case. Because

we are talking about situations where a parent can prove

that the placement was inadequate. In that situation

the parent cannot qualify for reimbursement unless it

subjects his child to the inappropriate placement.

This Court rejected that rationale in clear

and unambiguous terms in the Burlington case. Justice

Rehnquist put it in that case --

JUSTICE SCALIA: Under a different statute.

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MR. GARRE: Under a different statute but

interpreting the fundamental requirement of the statute

that all children with disabilities are entitled to a

free and appropriate public education. But that

requirement didn't change, and this is what Justice

Rehnquist --

JUSTICE SCALIA: You are interpreting some

very general language: "Shall grant such relief as the

court determines is appropriate."

MR. GARRE: The -- the part of the

Burlington case I'm referring to Justice Scalia is the

interpretation of the fundamental requirement of

providing free and appropriate public education. And

what Justice Rehnquist said there -- and the unanimous

Court agreed -- is forcing a parent to choose between

subjecting his child to inadequate public placement or

paying for private placement deprives the parent of his

right to a free and appropriate public education.

JUSTICE SCALIA: So does the

10-business-days notice requirement for people who are

in public schools also violate Burlington, because for

10 business days they are going to be subject to an

inappropriate education?

MR. GARRE: The way the 10-business-days

requirement works in practice is that all of the IEPs --

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virtually all of them are proposed towards the end of

the school year; and, typically, the parent is submitted

the proposed IEP during the summer. And it's at that

point that they have to make a decision whether to

litigate that, put their child in a private school, or

put them into a public school.

So the 10 business days in practice is not

going to require the child to go into the inadequate

placement. That was true in the fact pattern --

CHIEF JUSTICE ROBERTS: So in a situation

where it's not in the summer, where they say, well,

let's see how it works, and then they go to the public

school, I would have thought your argument also would

say it's not -- they don't have to give notice of 10

business days because in Burlington you said you don't

-- you have to make available the tuition reimbursement.

They passed a statute imposing a limitation on that, 10

business days.

MR. GARRE: And we don't -- we don't dispute

that --

CHIEF JUSTICE ROBERTS: You don't dispute

that limitation. You dispute the other one, though,

which says they have to have previously received

special-education services.

MR. GARRE: In order -- in order to qualify

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for reimbursment in that provision which is -- which is

followed by the provision describing in more concrete

detail the circumstances that courts ought to take into

account in determining whether reimbursement is

appropriate.

And if I can explain the way we read Section

1412(a)(10)((C), the first part of that subsection is

Subsection (C)(i). That hasn't come up during the

argument today. It is barely mentioned in Petitioner's

brief. That subsection -- it is on page 5a in the

appendix to the Gray brief, lays down the general rule

-- the rule that tells school districts when they don't

have to worry about paying reimbursement. And that is

when they provide a free, a public -- an appropriate

public education in the first place.

That -- that is consistent with Burlington

and Carter, and that lays down the general rule. School

districts that provide an appropriate placement don't

have to worry about reimbursement.

Subsection (C)(ii) then goes on to identify

a particular fact pattern which also happens to be the

most common situation in which reimbursement claims are

presented to the courts. And Congress in that

situation, along with Subsections (3) and (4), provided

the courts with more concrete guidance in determining

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how to exercise their discretion in that situation.

The legislative history supports that

interpretation. On pages 25 to 29 of the National

Disability Rights Network brief they explain how

Congress in the legislative history indicates that they

were focused on case law applying this Court's decision

in Burlington and Carter where the students were already

enrolled in public school.

There is no indication whatsoever at all in

the legislative record that anybody had in mind scaling

back the fundamental mandate of the statute for school

districts to provide a free and appropriate public

education for every child.

CHIEF JUSTICE ROBERTS: Anywhere? I thought

Representative Castle said that this would result on

easing the burden on the school districts to pay

tuitions.

MR. GARRE: And it would, Your Honor,

insofar as we are dealing with flushing out the

requirements for students enrolled in public school.

But there is no indication that Congress meant to scale

back this Court's interpretation of the act's

fundamental mandate to provide a free and appropriate

public education.

Petitioner's give-it-a-try rationale just

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doesn't fit to advance its argument before this Court.

It doesn't fit to the extent that Petitioner is

suggesting that you have to give public school a try,

because it's clear that the -- their interpretation

would apply to students in public school, as well as

private school. It would apply to all students entering

the special education system, including the student

who's been enrolled in public school from kindergarten

to 11th grade.

If he hasn't previously received

special-education or related services, then, under

Petitioner's view, if he's offered a grossly inadequate

plan, he has to be subjected to that plan in order for

his parents to qualify. And Petitioner's interpretation

doesn't require the parents to give the proposed

placement at issue a try. All it requires is that they

show that they received previous special-education

services at some point in the past.

And that's the way it worked in Burlington;

that's the way it worked in Carter; and that's the way

it works in most of the cases. Students are already in

the special education system, and they are proposed an

IET at some point typically during the summer. And the

parents at that time say this IET is inadequate for my

child, and I want to --

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JUSTICE SCALIA: Well, that's no problem. I

mean both sides agree that you can move to a private

school if that's so; right?

MR. GARRE: If you have previously received

special- education services. But my point, Justice

Scalia, is under Petitioner's -- the way they read the

statute, you don't have to give the proposed placement

at issue a try. So to the extent that this Court

thinks, or Petitioner is arguing, that Congress wanted

to make sure that we could better evaluate whether or

not this proposed placement proposed placement is going

to work for this child. That doesn't fit with the

statutory language because in practice the students --

all they have to show is that they received services at

some point in the past and if they have they can go into

private school and seek reimbursement. It doesn't

require a student to be subjected to the inadequate plan

unless you happen to be the student who is enrolled in

public school or enrolled in private school and you're

entering the special education system. At that point

then, Petitioner's interpretation requires the parents

to enroll their child who has already been determined to

have a learning disability in a plan that is inadequate,

and we think that is an untenable result.

CHIEF JUSTICE ROBERTS: But the whole point

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is you don't necessarily know it's inadequate until

later in time. Right? The school board thinks it is

adequate.

MR. GARRE: That's true, Your Honor. But

two points about that -- first, parents who do enroll

their children in private school at their own financial

risk. And as Justice Scalia pointed out in his

concurring and dissenting opinion in Winkelman, there

are particular incentives against bringing frivolous

reimbursement claims in this context.

JUSTICE SCALIA: Except those -- there are a

lot of parents who are going to send their parents to

private school, no matter what. They are well-heeled

and this is just an opportunity to have New York City

pay $30,000 of it.

MR. GARRE: And Justice Scalia -- two points

on that, first the statute provides in clear and

unambiguous terms that all children with disabilities

are entitled to a free and appropriate education. The

child find requirement, which Section 1412 --

JUSTICE SCALIA: Even the child who would

turn down the adequate education provided by the public

schools. I don't think that was the intent of the

statute.

MR. GARRE: And I agree with you on that,

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Justice Scalia, and that's why the way that school

districts can avoid reimbursement is to offer an

adequate placement in the first place. That's what

Section 1412(a)(10)(C)(i) provides. It lays down the

general rule. School district today talks about we need

to have collaboration, we need to have cooperation

during the IEP process. They hold all the cards during

that process. And if they want to avoid reimbursement

they should do what this Court said in the Carter case,

that's provide the student with a free, appropriate

public education.

JUSTICE SCALIA: If they don't have an

adequate placement, they should not have to pay the

freight for people who would not be coming to public

school any way. That's what this provision prevents.

MR. GARRE: I disagree with that, Your

Honor. I think that's inconsistent with the statutory

mandate to provide a free and appropriate education for

all children with disabilities. I would say though, and

I want to be clear on this -- even though appearance of

students in private school or in public school who

haven't previously received special education or related

services qualify for reimbursement under our

interpretation of the statute. It doesn't mean that

they are entitled to reimbursement. In the situations

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Your Honor may have in mind, where the parents genuinely

aren't complying in good faith or genuinely aren't

interested in sending their kids to public school, they

only want to try to gain the system -- in those

hypothetical situations, courts have equitable

discretion to deny reimbursement claims, and they have

denied those reimbursement claims.


Mr. Garre. Mr. Koerner, you have three minutes

remaining.

REBUTTAL ARGUMENT OF LEONARD J. KOERNER

ON BEHALF OF PETITIONER

MR. KOERNER: Thank you, Mr. Chief Justice.

First, this particular provision, as the Chief Justice

noted, is called payment for private school placements

where they don't have the consent of the local

education. Any reasonable reading of that is that it's

all encompassing. And any person who has to apply has

to satisfy those provisions. Second, this statute did

not overrule Burlington or Carter. In those cases the

children were already receiving special services. Now

it could be in a future case someone would speak to

extend those cases, but Congress has now spoken to make

sure that Burlington and Carter go no further than you

have previously held. Third, there is an assumption

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that the program is going to be defective from day one.

But that's contrary to this Court's decision in Schaffer

which presumes the good faith of the individuals who

propose in program. And that is the heart of the entire

case. Fourth, let's assume, for example, that someone

can create an ambiguity in this case. Citing the

Arlington case, in which you placed yourself in the

position of the local education officer, when you look

at this particular section -- and particularly C double

2 -- double i and triple i. Would you, in that

position, understand that it doesn't really mean what it

says, that previously received special education

services was only meant to cover the people already in

the system and was not intended to cover people outside

the system. That isn't what it says. More importantly,

the ambiguity is clearly not obvious. So how would a

local officer who has to understand whether or not to

place the funds at risk know whether or not in complying

with this particular situation, it was explicit or

implicit?

JUSTICE ALITO: During the period between

Burlington and the enactment of this statute, would you

have any doubt about your potential obligation to

reimburse a parent -- during the period of Burlington

and the enactment of the statute, would the school board

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have had doubt about its potential liability for

reimbursement, in a situation like this?

MR. KOERNER: I think so. I think, because

of Burlington and Carter, where the children were

already in the system, this would be the next step.

Would we have presented to you the fact that you

shouldn't expand it? Probably. Would I know what you

would conclude? No, but the statute eliminated that

entire discussion. It is clear. But again, there is a

very big spending clause -- as I mentioned in my earlier

presentation, if it's so ambiguous that you can read out

a specific provision, how can that ambiguity not go down

to the benefit of the city through it's local education

system?

JUSTICE GINSBURG: I thought this statute

was also premised on Section 5 of the 14th Amendment, in

which case it wouldn't have spending clause notice

argument.

MR. KOERNER: No, the -- this is just a

grant provision, Your Honor. It's not premised on any

constitutional provision. It's a grant where funds are

provided to the local education district, and in return

they agree to comply with all the conditions set forth

in the IDEA. There are no constitutional limits. Thank

you very much.

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Mr. Koerner. The case is submitted.

(Whereupon, at 11:55 a.m. the case in the

above-entitled matter was submitted.)





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us supreme court: 06-637

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