Notable Victories Detail Banner
All Notable Victories

October 2014: Second Circuit Pro Bono Victory

October 2014

In July 2014, the firm won a pro bono victory in the U.S. Court of Appeals for the Second Circuit in an appeal involving the Individuals with Disabilities in Education Act (“IDEA”), a federal law that guarantees students with disabilities a “free appropriate public education.” In E.M. v. New York City Department of Education, Judge Carney (joined by Judges Jacobs and Kearse) issued a 50-page decision vacating the district court’s judgment that had declined to require the New York City Department of Education to pay the tuition for a private program in which the firm’s client had placed her severely autistic daughter because she believed that the public school could not offer a safe and appropriate learning environment. The court concluded that the client had standing to seek public payment of that private school tuition even though she could not afford to pay the tuition nor had the school initially billed her, holding that “[t]he IDEA promises a free appropriate education to disabled children without regard to their families’ financial status.”

The client, E.M., had placed her daughter N.M. in a private school for autistic students because she believed that the public school program E.M. had been offered would not be safe for N.M., who is severely autistic and frequently engaged in self-harming behaviors. E.M., however, could not afford to pay N.M.’s tuition at the private school. Instead, she signed an enrollment contract with the school obligating her to pay the tuition, while the school left all of the payment deadlines in the form contract blank and agreed orally that it would hold off enforcing the contract while E.M. sought the tuition from the DOE.

While many cases have reaffirmed the right of parents to enroll their students in private school and seek reimbursement for the tuition under the IDEA, only a few district courts in the Second Circuit had addressed whether a low-income parent can seek retroactive payment of tuition that the school hasn’t required the parent to pay. And indeed, administrative judges at both the city and state level had determined that E.M. did not have standing, because N.M. had received an appropriate education at no cost to E.M.

In its decision, the Second Circuit concluded unanimously that E.M. had standing. It held that the tuition contract E.M. had signed, in spite of certain blanks in the contract and notwithstanding that it had not been enforced five years after it was signed, was at least sufficient to give E.M. “a well‐founded basis for fearing exposure to suit for nonpayment,” and thus presented an injury-in-fact for standing purposes. The Court also decided in the alternative that, even if E.M. had reached an oral agreement with the school that she would have no obligation to pay tuition “unless and until” she succeeded in obtaining that tuition through an IDEA action against the Department of Education, E.M. still had standing to pursue her claim.

This holding is especially important for low-income families, as parents now have standing to seek tuition payments even where they have reached an explicit understanding with the private school that they will not be required to pay tuition under their enrollment contract “unless and until” such tuition is received from the Department of Education through an IDEA proceeding. Previously, schools and parents had been hesitant to reach such explicit arrangements for fear of jeopardizing the parents’ standing.