The 4-4 tie vote means that a lower court ruling in favor of the family stands, and that New York City will have to reimburse the family for tuition at the Stephen Gaynor School for children with learning differences in Manhattan. Only eight justices heard the case; Justice Anthony Kennedy did not take part in the case, but the court did not explain why he was excluded.
The case, Board of Education of the City School District of the City of New York v. Tom F., on behalf of Gilbert F., raises an important question in the ongoing tension between school districts and families with disabled children who disagree on how best to serve the student's needs under the law which requires every student receive a free and appropriate public education.
The question in this case: if the family and school district disagree on whether a school district can meet a student's needs, does the family have to try out the school district's plan anyway? And if the family chooses not to do so, and enrolls the student in a private school, does that action mean the family gives up its legal right to seek reimbursement for the private school tuition?
New York City's lawyer's argued yes, the student has to try out the public school program. The Freston family's lawyers argued no.
This case has received a lot of attention in the media in part because the "Tom F." in the case is a well-known businessman, former Viacom CEO Tom Freston; most media accounts have noted how Freston's wealth contrasts with the overburdened city school system.
Because the court issued only a statement that said, "The judgment is affirmed by an equally divided court," we don't know which justices sided on the Freston's side, or the city's side. Even the special education law experts at Wrightslaw.com noted in this summary of the Freston case and attorneys' oral arguments before the Supreme Court on October 1 that it appeared the court was divided on the questions in the case.
Autism Speaks was a player in the case filing a legal brief at the Supreme Court in support of Gilbert F. and his family (Gilbert F.'s disability was not identified). Every parent of a child with an autism spectrum disorder who has to go through the process of working out an Individualized Education Prorgram (IEP) knows there are options school districts and parents discuss about how to educate any given student—and little time to waste in trying out a program that might cause an autistic child to regress. An Autism Speaks statement added:
"Today the court affirmed the danger of making students try out an inappropriate school district program. Students who need early intervention do not have time to waste," said Gary Mayerson, an Autism Speaks board member and founder of law firm Mayerson & Associates. "School districts need to fulfill their statutory responsibility to create an appropriate IEP for every child with a disability or to pay for that student to attend an appropriate private school."
Autism Speaks filed an amicus brief in the case, focusing on the critical nature of early intervention for children with autism. The brief explained why parents of children with autism should not be forced to "try out" demonstrably inappropriate and ineffective IEP programs during what may well be a relatively narrow window of opportunity.
Tom Freston issued a statement today, quoted in this Associated Press article:
Freston said in a news release that he believed the Supreme Court had affirmed that "children with learning challenges have a right, without jumping through hoops, to attend schools capable of providing them with an education that truly accommodates their individual requirements."
School districts around the nation were following this case, The New York Times notes. The lead New York City Schools lawyer told the Times for this blog post that the Supreme Court's left the main questions in the case unanswered, and he hoped the court would find another case to rule on the issue in the near future.
For his part, Freston has donated reimbursement funds to the city's public schools, to help with remedial reading programs, for example.