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Alice K. Nelson Senior Attorney Southern Legal Counsel, Inc. Gainesville, Florida
Title I – Elementary and Secondary Act of 1965 Public Law S. Rep. No. 146, 89 th Cong., 1 st Sess., reprinted in 1965 U.S. Code Cong. & Ad. News, 1446, (discussing Act designed to provide full opportunity for a high quality program of instruction in basic skills so as to overcome effects of poverty and to provide a “basic floor” of services for all adults and children in the United States.)
Compensate for educational disadvantages “The effort to compensate for these disadvantages [of poverty]…is the basis of the school program relevant to the disadvantaged child. The principle of compensation is fundamental in education of the disadvantaged.” Benjamin S. Bloom, Allison Davis, and Robert Hess, The Problem in Perspective, in “Hope for Connecticut’s Disadvantaged Children, A School Administrator’s Guide to State and Federal Programs for Education Deprived Children,” Connecticut State Dept. of Educ., Report Number SCDE-Bull-98, 1966 at 9.
Compensate for educational disadvantage These programs were described in some cases as “special educational programs” as in Connecticut they could include “pre-kindergarten education; remedial programs; work study programs; reduced class size; school library collections; special tutoring; [or] programs for school dropouts…” Id. at 25.
Milliken v. Bradley (II), 433 U.S. 267 (1977) Federal courts have equitable power to order remedial education programs as part of a school desegregation decree. Id. at 280 General principles: 1To be determined by the nature and scope of the constitutional violation; 2The decree must be remedial in nature, i.e. designed as nearly as possible to “restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct
Milliken (cont) 3Must take into account the interests of state and local authorities to manage their own affairs, consistent with the constitution. Once invoked the scope is broad, for “breadth and flexibility are inherent in equitable remedies. Id. at 281. It was argued that the remedy should be no more than correcting unlawful pupil assignments. The Court rejected this, finding that:
Milliken (cont) The specific educational remedies which, inter alia, included compensatory remedial education, and which are usually left to discretion of school boards and educators, “were deemed necessary to restore the victims of discriminatory conduct to position they would have enjoyed. Id. at 282.
Milliken (cont) – Eleventh Amendment Immunity State argued that the requirement that it pay for on-half of the additional costs of the remedy violated the Eleventh Amendment on the basis that “in practical effect” the award was indistinguishable from money damages. Relying on Edelman v. Jordon, 415 U.S.651 (1974) which held that while retrospective relief (the payment of misheld welfare benefits) was improper, prospective relief as a necessary consequence of compliance in the future is proper. Thus, federal courts can enjoin state officials to conform to requirements of federal law notwithstanding a direct and substantial impact on the state treasury. Id. at 290.
Pub. Law These were amendments to the Elementary and Secondary School Act which included grants for children with handicaps. In relevant portion the Act provided: …provide for procedures for insuring that handicapped children and their parents …are guaranteed procedural safeguards in decisions regarding identification, evaluation and educational placement of handicapped children including not limited to …(ii) an opportunity for the parents …to obtain an impartial due process hearing… Sec. 612(d)(12)(C).
Pub. L Originally S. 6 contained the following: Sec. 6 (a) In order to qualify for assistance … in any fiscal year, a State shall demonstrate … that the following conditions are met. (4) Each local educational agency … will maintain an individualized written program for each handicapped child and review at least annually and amend when appropriate with the agreement of the parents …; that in the development of the individual written program, parents … are afforded due
Pub. L (cont.) Process procedures which shall include: (A) prior notice to parents …when the local or State educational agency proposes to change the educational placement of the child, (B) an opportunity for the parents …to obtain an impartial due process hearing, examine all relevant records with respect to the classification or educational placement of the child, and obtain an independent educational evaluation of the child…
Pub. L (cont.) Hearings by both the Senate and House Committee were held around the country between May 1973, and April, Some portions of the hearings focused on this section and the due process hearings that had developed in the States. Suggestions were made For example, one witnessed wanted to see more enforcement and sanctions other than the withholding of funds. This witness also suggested that the State courts cannot decide the issue in the way that a Federal court could and wished to see a Federal course of action with damage provisions and remediation provisions because a teenager who had never had any education needs such provisions. Education for All Handicapped Children, , S.6, April and May 1973 at 41.
Pub. L (cont.) Another witness pointed to the procedures adopted in the consent decree in PARC v. Penn., 334 F.Supp (E.D. Pa. 1971). There were numerous provisions regarding hearing rights, including appeal procedures, which required appeals to the “Right to Education Office” with the ultimate decision by the [State]Secretary of Education. Financial Assistance for Improved Educational Services for Handicapped Children, H.R. 70, March 1974 at 143 The hearing procedures adopted as the result of Mills v. Bd. of Educ., 348 F.Supp. 866, (D.D.C. 1972) were reviewed which contained extensive hearing rights
Pub. L (cont.) with which we are now familiar which included, inter alia, notice, right to counsel, right to cross- examination, right to call witnesses and the like. Appeals were to be decided by a committee of the Board of Education. Id. at 186 The Committee also heard about Tennessee’s procedures which at the time had judicial review “in the manner provided for judicial review of the determinations of the state or local education agency”
Pub. L (cont.) Tennessee also provided for enforcement by a court. Id. at Final bill: Section 615 includes extensive procedural safeguards including 20 U.S.C. § 1415 (e)(3) [now 1415(i)(C)]: In any action brought under this paragraph, the court: (iii) … shall grant such relief as the court determines is appropriate.
Pre-Burlington Cases Anderson v. Thompson, 658 F.2d 1205 (7th Cir. 1981) There are no damages barring exceptional circumstances, e.g.., (1) child’s physical health would have been endangered had parents not made alternative arrangements to those offered by LEA and (2) LEA acted in bad faith by failing to comply with procedural safeguards; Act provides only equitable and prospective relief.
Pre-Burlington Cases (cont.) Accord, Miener v. State of Mo., 673 F.2d 969, (8th Cir. 1982) Follows Anderson and also denies compensatory educational services as Eleventh Amendment bars damage awards against states. Parker v. District of Columbia, 588 F. Supp. 518, (D.D.C. 1983) Reads Anderson to permit tuition reimbursements if such relief is appropriate and relies on unreported D.C. case which held that “compensatory education is virtually indistinguishable from tuition reimbursements”
Pre-Burlington Cases (cont.) Timms v. Metropolitan Sch. Dist., 722 F.2d 1310 (7th Cir. 1983) Explained that differences between damages and compensatory education is “not clear;” Relies on Milliken by explaining that Supreme Court approving providing remedial education by supplementing curriculum because of past effects of discrimination; compensatory education unlike damages was prospective and therefore not barred by the Eleventh Amendment; compensatory education under the Act “entails an obligation to correct the effects of past shortfalls. Note: claims dismissed for failure to exhaust.
Burlington Sch. Comm. V. Dep’t of Educ., 471 U.S. 359 Explains that “grant such relief as appropriate” includes retroactive tuition reimbursement. The Court ordered retroactive tuition reimbursement for the costs the parents paid while the case was being litigated. The standard established was that the public school IEP was inappropriate (or denial of FAPE) and the private school was appropriate. The Court further explained that reimbursement is not damages but rather requires a district to pay expenses it should have paid all along.
Post-Burlington Miener v. State of Mo (II)., 800 F.2d 749 (8th Cir. 1986) However, the Supreme Court's decision in Burlington,... a unanimous opinion by Mr. Justice Rehnquist, has altered our understanding of what “damages” includes in the context of the EHA (753)... [Unlike parents in Burlington, the Mieners could not afford a private placement. Student was place in an inappropriate placement and now seek perspective compensatory services for the years where there was a denial of FAPE.]
Post-Burlington (cont.) Like the retroactive reimbursement in Burlington, imposing liability for compensatory educational services on the defendants “merely requires [them] to belatedly pay expenses that [they] should have paid all along” [citation omitted]. Here, as in Burlington, recovery is necessary to secure the child’s right to a free appropriate public education [citation omitted]. We are confident that Congress did not intend the child’s entitlement to a free education to turn upon the parent’s ability to “front” its costs. (753) Note: No relief awarded, pending outcome of determination of denial of FAPE.
Definition Parent of Student W. V. Puyallup Sch. Dist., 31 F3d. 1489, 1497 (9th Cir. 1994) Compensatory education is an equitable remedy, which is not contractual, and is “part of the court’s resources in crafting “appropriate relief.” G. v. Fort Bragg Dependent Schools, 343 F.3d 295, 309 (4 th Cir. 2003) “…compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.
Nature of the Award Compensatory Education is not damages. See generally “Annotation, Availability of Damages and Actions to Remedy Violations of individuals with Disability Education Act, 165 ALR Fed. 463 (2000). Not tuition reimbursement which requires a three step analysis: 1. Was the district’s placement appropriate? 2 If not, is the parent’s unilateral placement appropriate? 3. If so, do the equities favor reducing or denying reimbursement?
Nature of the Award (cont.) As correctly described in Parent of Student W.: [Some courts] have “rotely awarded a block of compensatory education equal time lost while a school district denied a free, appropriate public education...” Id. These include: Valerie J. V. Derry Cooperative Sch. Dist., 771 F.Supp 483, 491 (D.N.H. 1991)(awarded for at least seven and a half months) Burr v. Ambach, 863 F.2d 258, 1078 (2nd Cir )(awarding one and one-half years to student who was unable to attend school at all due to state errors and procedural delays.) [procedural history omitted]
Nature of the Award (cont.) Heather D. V. Northampton Area Sch. Dist., 511 F.Supp.2d 549 (E.D.Pa. 2007) Relying on M.C. v. Cent. Reg’l Sch. Dist, 81 F.3d 389, 397 (3rd. Cir. 1996) the court held that the amount of compensatory education is calculated by finding the period of deprivation of special education services and excluding the time reasonably required for the school district to rectify the problem. The court examined various calculations of the amount of time lost and awarded the child 2428 hours of compensatory education. Heather D., 511 F. Supp.2d at 555. It then calculated the amount of money necessary to provide the services ($75) and converted the award to money. Id. The hourly award was based on the amount that the parent would have to pay for the services and not a district-determined rate. Id. at 560. The court then reviewed the testimony of various experts as to an appropriate rate. Id. at
Nature of the Award (cont.) Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005) The focus of the award is not on a mechanical hour-counting approach. Rather there must be a qualitative approach which “…just as IEPs focus on …individual needs, so much awards compensating past violations rely on individualized assessments.” Id. at 524 “This flexible approach will produced different results in different cases depending on the child’s needs. Some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies. Others may need extended programs, perhaps even exceeding hour-for-hour replacement of time spent without FAPE. In addition, courts have recognized
Nature of the Award (cont.) that insetting the award, equity may sometimes require consideration of the parties’ conduct, such as when the school system reasonably ‘require[s] some time to respond to a complex problem’ [citation omitted] or when a parents’ refusal to accept special education delays the child’s receipt of appropriate services. Parents of Student W., 31 F.3d at Reid, 401 F.3d at 524. Reid distinguished the Rowley standard of FAPE for a “mixed standard” – compensate for prior FAPE denials in addition to providing some benefit going forward. Id. at 525.
Nature of Award (cont.) Friendship Edison Public Charter School v. Nesbitt, 583 F.Supp.2d 169 (D.D.C. 2008)(awarding a psychological educational evaluation and vocational assessment in order to determine the compensatory education award) See also Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 276 (awarding special sessions during school year and a four week summer program for two years or until high school graduation)
Nature of Award (cont.) Draper v. Atlanta Independent Sch. System, 518 F.3d 1275 (11 th Cir. 2008) Facts: Student entered the school system as a seven year old in the second grade in He could not read, was writing at a kindergarten level and did not know the alphabet sounds. In February 1995, November 1996, February 1997, and October 1997 teachers recommend testing.
Nature of Award (cont.) Draper (cont.) He was tested in June 1998 and found to have a 63 IQ. The testing was flawed. In January 1999 he was placed in a self-contained classroom for children with mild intellectual disabilities. The curriculum was functional that would not lead to a regular high school diploma. In April, the IEP team met and determined that he was reading at a third-grad level and spelling at a first-grade level. He was 13 years old.
Nature of the Award (cont.) Draper (cont.) He remained in the self-contained classroom through the 2003/04 schools year. His placement in this classroom was based on the 1998 evaluation. He was not re-evaluated until April 2003 when he was in the 9 th grade and 16 years old. (Under the Act he should have been evaluated by June 2001.) The psychologist recommended further testing.
Nature of the Award (cont.) Draper (cont.) He was re-evaluated in July He did not have mild intellectual disabilities but had a specific learning disability. His full scale IQ was 82. He was still reading at a 3 rd grade level as well as other deficits. His reading had not improved since April Parents requested private schooling and one-on-one tutoring to help close the achievement gap as they wish him to obtain a regular diploma. No action was taken.
Nature of the Award (cont.) Draper (cont.) In September 2003, his diagnosis was changed by the district to specific learning disability. He was recommended for 1.5 hours of speech. In October 2003, the team determined to provide him with 19.5 hours of general education and 10.5 hours of special education a week. He was placed in regular ed classes for the first time since third grade even though the district knew that a 5 th or 6 th grade reading level is required to survive academically in high school.
Nature of the Award (cont.) Draper (cont.) The IEP provided for a computer based reading program but it was not provided. On November 21, 2003, after mediation, the district agree to provide this program no later than November 21. It was not implemented until December 9 and by January 12, 2004, he had received only 2.5 hours of instruction. On May 24, 2004, he was privately evaluated by Lindamood-Bell. It recommended that he receive intensive sensory-cognitive training at a rate of 6 hours daily for a total of 360 hours.
Nature of the Award (cont.) Draper (cont.) On May 26, 2004, although he was still reading at a 3 rd grade level the team decided he should use the computer program during the summer. The parents requested private reading service but were informed that they would have to file a formal complaint. During the summer of 2004 the district referred him for an independent psychological evaluation which established that his skills in several areas were severely discrepant from his potential.
Nature of the Award (cont.) Draper (cont.) It was concluded that he ha specific learning disability consistent with dyslexia and recommended intensive multi-sensory training. Over parental objections the team decided in November 2004 to continue the computer program. When the team met again in May 2005 h had failed his language- arts class and was failing algebra.
Nature of the Award (cont.) Draper (cont.) The State Department informed the parents that they could request a hearing which was held in November The Student was 18. ALJ: There was no FAPE for 02/03; 03/04; and 04/05 There was a failure to timely re-evaluate; The continuation of a program that was no working was a denial of FAPE
Nature of the Award (cont.) Draper (cont.) ALJ Remedy: The choice of two remedial options: 1. Substantial additional support services in the district; Or 2. Placement in a private school at the district’s expense, not to exceed $15,000 per year through July 2009 or when he received a high school diploma, whichever came first.
Nature of the Award (cont.) Draper (cont.) The District Court: The statute of limitations permitted an awarded for his placement in the restrictive classroom in 1999 but limited compensation for the failure to re-evaluate for the period between November 2002 and April At parental request, the cap was listed and the time frame for the remedy extended t or whenever he received a high school diploma, whichever came first.
Nature of the Award (cont.) Draper (cont.) The Eleventh Circuit: A prospective injunction that requires placement in a private school is appropriate when the public school placement is not. Burlington The student is not required to demonstrate that he cannot be educated in a public setting. The relevant question is not whether a student could in theory receive an appropriate public education in a public setting but whether he will receive on. Ridgewood Bd. of Educ. V. N.E., 172 F.3 rd 238, (3 rd Cir. 1999)
Nature of the Award (cont.) Draper (cont.) The district argued that the awarded is different from a reimbursement of tuition. But, the Court saw this as an anomaly. “If Draper’s family had unilaterally placed him …then an award would be appropriate…As the district court had found a denial of FAPE and concluded that school offered an appropriate placement. If the district court could not prospectively award placement in a private school the student would be worse off with an award of prospective education than he would be with a retroactive award for the same violations of the Act.
Nature of the Award (cont.) Draper (cont.) The Supreme Court recognized in Burlington that “conscientious parents who have adequate means” will place their child in private school if they are “reasonably confident of their assessment” that an education program at a public school is inadequate. The district’s argument would provide wealthier parents with greater benefits than poorer parents.
Nature of the Award (cont.) Draper (cont.) “We do not read the Act as requiring compensatory award of prospective education to be inferior to awards of reimbursement. The Act does not relegate families who lack the resources to place their children unilaterally in private schools to shouldering the burden of proving that the public school cannot adequate educate their children before those parents can obtain a placement in a public school. The Act empowers the district court o use broad discretion to fashion appropriate equitable relief.
Mootness? Aging Out Phil v. Massachusetts Dep’t of Educ., 9 F.3d 184, (1st Cir. 1993) (permitting an award, upon proper showing, to an individual who was twenty-seven years old.) The basis for this is: In order to give meaning to a disabled student’s right to an education between the ages of three and twenty-one compensatory education must be available beyond a student’s twenty-first birthday. Otherwise, school districts simply could stop providing required services to older teenagers, relying on the Act’s time- consuming review process to protect them from further obligations. Although students able to front the costs of an appropriate education later could claim reimbursement... absent a compensatory education award, courts would be powerless to aid intended beneficiaries who were over twenty-one but who had not sought out an alternative educational program.
Jefferson Cty. Bd. of Educ. v. Breen, 853. F.2d 853 (11th Cir. 1988) (funds for reimbursement and two years of compensatory education beyond twenty-first birthday) Lester H. V. Gilhool, 916 F.2d 865, (3rd. Cir. 1990)(awarding two and a half years of compensatory education post-statutory entitlement for twelve year old) Todd D. v. Andrews, 933 F.2d 1576, 1584 (11th Cir. 1991) (compensatory education even when student is aging out) Board of Educ. Of Oak Park v. Illinois State Bd. of Educ., 79, F.3d 654,,660 (7th Cir. 1996) (compensatory education is a benefit that can extend beyond the age of 21) Mootness? Age
Mootness? Graduation Brett v. Goshen Community Sch. Corp, 161 F. Supp. 2d 930, (N.D. Ind. 2001)(not moot on the basis of student’s age of 24 because compensatory education cures past violations and because “graduation per se does not necessarily equate” with FAPE.” Bennett v. Memphis City Sch. Sys., 113 Fed Appx. 124 (6 th Cir. 2004)
Mootness? Graduation Compare Brett with Yankton Sch. Dist. v. Schramm, 93 F.3d 2369 (8 th Cir. 1996) (graduation from high school will cut off district’s responsibility ) NB: Might have been a different result if parents had appealed district court’s decision denying request for compensatory education.)
Mootness? School Drop Out and Attendance Maine Sch. Admin. Dist. No. 35 v. Mr. and Mrs. R., 321 F.3d 9 (1 st Cir. 2003)(fact that student dropped out does not affect compensatory education claim.) Garcia v. Bd. of Educ. Of Albuquerque Pub. Sch., 520 F.3d 116, 1131 (student’s refusal to attend school and the demonstrated likelihood that she will not take full advantage of the court’s relief does not motto case and strip court of subject matter jurisdiction but is relevant to assessing whether and what relief may be appropriate.)
Mootness ? Settlement Agreement Lesesne v. District of Columbia, 447 F.3d 828 (not mooted by settlement agreement if compensatory education claim not resolved.)
Presently Appropriate Program Flores v. District of Columbia, 437 F. Supp.2d 22 (D.D.C. 2006)(even though student in currently appropriate program, the student may still be entitled to an award of compensatory education.)
The Ninth Circuit’s View (cont.) Park v. Anaheim Union High School Dist., 464 F.3d 1025 (9th Cir. 2006) This case recognized that compensatory education may be based on procedural violations if they deprived the student “of an educational opportunity (prejudice) or seriously infringe on his parents’ opportunity to participate in the formulation of the individualized education plan.” Id. at But no procedural violations were found This case is also interesting because the opinion affirmed a Hearing Officer’s finding that the award directly to the student would be speculative. Instead, the Hearing Officer directed that the services be made available to the student’s special education teach in the amount of 30 minutes per week for the remainder of a school year. The court concluded: “The...Act dos not require compensatory education services to be awarded directly to the student. Id. at 1034.
California Hearing Officers’ Approach Frequently cited cases: Student W for the proposition that districts may be ordered to provide compensatory education to a student who has been denied FAPE Reid for the proposition that an award to compensate for past violations must rely on an individualized assessment, just as an IEP focuses on the individual student’s needs and that the award must be reasonably calculated to provide benefits that likely would have accrued from special education services the school district should have supplied in the first place.
California Hearing Officers’ Approach Parent v. Cloverdale Unified Sch. Dist, OAH Case No (Jan. 20, 2011) Here, compensatory education was ordered in the face of the LEA’s argument that the student had been “emotionally unavailable” to learning during some of the periods in issue. The focus was not on the past but the “Student’s ability to receive instruction now.” Id. ¶ 62. It also rejected arguments that a difficult family life had contributed to the Student’s problems and that the parents had “unclean hands.” Id. Facts, ¶¶ This case also addresses the methods of calculating awards, recognizing that an ALJ may order a mathematically calculated award based on a day-to-day or hour-to-hour basis. However, also appropriate is an approached that is based on the estimate of how much education and behavioral help the student would need in total to make up for the loss. Id. ¶ 69.
California Hearing Officers’ Approach (cont.) The award must be “reasonably calculated to provide the educational benefits that likely would have accrued from the special education services the school district should have supplied in the first place,” which is not to be confused with the Rowley standard. [citations omitted]. Id. Law, ¶ 22. This case also standards for the proposition that compensatory education may be awarded for procedural violations. See generally id. Facts, ¶ 31.
California Hearing Officers’ Approach (cont.) Parent v. Garden Grove Unified Sch. Dist, OAH CASE NO (Jan. 11, 2010) Here, the ALJ did an extensive analysis of the deprivation of a number of the services that were to have been provided to Student and awarded compensatory education based on that analysis: the provision of 43 hours of compensatory physical therapy services for the failure to provide those services; for the failure to provide transportation services during a specific period of time, reimbursement to the parent for mileage at the rate of $.55/mile; for the failure to provide adaptive physical education during a specific period of time, hour-for-hour compensatory services; for the material failure to implement the Student’s IEP as regards AT an extra hour of per month of consultative services during a specified time period. Id. Law, ¶¶