Sidley on Cert Petition for $60,000--But Only if High Court Says Yes

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September 19, 2008 1:00 PM

Sidley on Cert Petition for $60,000--But Only if High Court Says Yes

Posted by Zach Lowe

Andrea Hungerford knew she needed help.

Her client, the Forest Grove School District, had decided to continue its fight over who should cover tuition for a special education student whose parents opted to send him to private school without trying special education programs at the local public school first. That meant filing a cert petition with the U.S. Supreme Court on an issue over which the Court has previously deadlocked.

"When you're a small firm in Oregon, going to the Supreme Court is not something you do every day," says Hungerford, of the Hungerford Law Firm in Oregon City.

As it turned out, lawyers at several firms were following the case. And when the U.S. Court of Appeals for the Ninth Circuit overturned a district court ruling and decided in April that Forest Grove must pay the $65,000 cost of sending the student to private school, Hungerford received several e-mails with offers to help.

Hungerford interviewed three of the firms via phone. She eventually chose Sidley Austin, in large part because of the experience offered by partner Gary Feinerman and associate Eamon Joyce. Feinerman has argued--and won--before the Court once before, while Joyce, 31, has drafted several cert petitions and amicus briefs.

Sidley offered to write the cert petition pro bono. If the court takes the case, Sidley will see it through for a maximum fee of $60,000. The low price was the only way the district could pursue the case, Hungerford says.

The legal dispute centers on a 1997 amendment to the federal Individuals with Disabilities Education Act. That amendment relates to the requirement that public school districts reimburse families the cost of private school tuition for special needs students who cannot be adequately served in public school.

Federal and state courts have been divided on the issue. Some have ruled that a student must try public special ed programs in order to qualify for the tuition payments. In its cert petition, Sidley notes that the 1997 amendment makes reimbursement available only to those who "have previously received special education under the authority of a public agency."

But other courts, including the Ninth Circuit in the Forest Grove case, have ruled that the amendment's language is vague and have sided with parents of special needs students.

The Supreme Court tackled the subject last year in a case pitting former Viacom chairman Tom Freston against the New York City Department of Education. That case ended in a 4-4 deadlock when Justice Anthony Kennedy recused himself. (The reasons for Kennedy's recusal remain unknown; he also announced he would recuse himself in a similar 2006 case the Court declined to hear.)

The split decision in the Freston case affirmed a lower court ruling that required New York to pay the cost of educating Freston's learning-disabled son in private school.

The Forest Grove case involves a high school student, identified in court records as "T.A.," who received poor grades and once, in 2001, brought a knife to school. School psychologists tested T.A. but found no evidence that he suffered from a learning disability. They later concluded that his problems stemmed at least in part from excessive marijuana use. Meanwhile, the boy's parents hired a private doctor who diagnosed him with a form of attention deficit disorder. The parents then enrolled him in a private school without notifying his public school, and sought to have the district pay the tuition. The district refused.

Sidley's Joyce says he developed a particular interest in the issues at the heart of the case while clerking at the Fourth Circuit appeals court. During that time, he says, he saw several similar cases that "just looked fishy."

Hungerford and the Sidley team hope the court takes the Forest Grove case and settles the issue once and for all. Sidley's team will handle the argument if it gets that far.

"There is a lot at stake here," Feinerman says. "Who should have to foot these kinds of bills?"

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