School district's have a nearly infinite ability to argue for the most strained construction of the law. The make these arguments because given the conservative nature of the judiciary they may just meet with a positive reception to their strained arguments. Moreover, the the old legal adage applies that "if the law is your side your pound the law, if the facts are on your side you pound the facts, and if neither are on your side you pound the table." In the case A. ex.rel.D.A. v. N.Y. Department of Education, 2011 U.S. District. Lexis 9475 (S.D.N.Y.2/1/11), the parents won their claim for a private unilateral placement for their child. The child was enrolled for some period of time, the parents had not paid the past tuition but it was due and owing to the private school. The school district argued that the court could not order reimbursement for past tuition because that remedy only applied when the parents had the ability to pay tuition and in fact had paid.
The court rejected the school district's argument finding no support for in IDEIA for this position. It applied the well established statutory principle, that permits the court to fashion a necessary remedy to provide the student with a FAPE. It further concluded that there was nothing in the law that limited the court's ability to order retroactive reimbursement where the parents had proven their case and the fairness of the evidence weighed in favor of ordering the reimbursement. The fact that the law in no way created a limitation on the right of the court to fashion a remedy, in no way deterred the school district from making such a baseless argument.
As a practical matter, a contrary ruling would have meant that only parents with greater resources are entitled to receive a full measure of FAPE. In addition, if the retroactive payment was denied, the child could have been kicked out of the private school making the victory totally hollow. Moreover, if the parents had to pay back the retroactive tuition their entitlement to a FREE appropriate public education would hardly be free at all. Here is one case to celebrate that the court actually applied the law to the facts with a healthy measure of common sense and reached the correct conclusion. Congratulations to the family for winning and sustaining the fight especially in the face of such arguments!