The Individuals with Disabilities Education Act (IDEA): Selected Judicial Developments Following the 2004 Reauthorization
Congressional research reportMay 4, 2011
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The Individuals with Disabilities Education
Act (IDEA): Selected Judicial Developments
Following the 2004 Reauthorization
(name redacted)
Legislative Attorney
May 4, 2011
Congressional Research Service
7-....
www.crs.gov
R40521
CRS Report for Congress
Prepared for Members and Committees of Congress
IDEA: Selected Judicial Developments Following the 2004 Reauthorization
Summary
The Individuals with Disabilities Education Act (IDEA) is the major federal statute for the
education of children with disabilities. IDEA both authorizes federal funding for special
education and related services and, for states that accept these funds, sets out principles under
which special education and related services are to be provided. The cornerstone of IDEA is the
principle that states and school districts make available a free appropriate public education
(FAPE) to all children with disabilities. IDEA has been the subject of numerous reauthorizations;
the most recent reauthorization was P.L. 108-446 in 2004. Congress is currently beginning the
process of identifying potential issues for the next reauthorization. Some of the issues raised by
judicial decisions include the following:
•
What amount of educational progress is required to meet FAPE standards?
•
What educational benefits are required to be put in an individualized education
program (IEP)?
•
What use of seclusion and restraints is allowed (if any) under IDEA?
•
Are all settlement agreements enforceable in federal court or only those reached
through dispute resolution or mediation?
•
Is information disclosed in a resolution session confidential?
•
What are the specific rights of a parent of a child with a disability?
•
What are the rights of a noncustodial parent of a child with a disability?
•
Does the Supreme Court’s decision in Schaffer v. Weast correctly allocate the
burden of proof in IDEA cases?
•
Are compensatory educational services required for the same amount of time that
the appropriate services were withheld?
•
Does the Supreme Court’s decision in Arlington Central School District v.
Murphy correctly deny reimbursement for expert witness fees?
•
Does there need to be more detailed guidance on systemic compliance
complaints?
This report examines the Supreme Court decisions, and selected lower court decisions since July
1, 2005, the effective date of P.L. 108-446.
Congressional Research Service
IDEA: Selected Judicial Developments Following the 2004 Reauthorization
Contents
Introduction ................................................................................................................................1
Definition of Disability ...............................................................................................................2
Child Find...................................................................................................................................3
Free Appropriate Public Education (FAPE) .................................................................................4
Statutory Provision................................................................................................................4
Supreme Court Decision in Rowley .......................................................................................4
Lower Court Decisions .........................................................................................................5
Educational Standards and the No Child Left Behind Act (NCLBA)......................................7
Peer-Reviewed Research .......................................................................................................8
The Individualized Education Program (IEP) ..............................................................................9
Statutory Provisions ..............................................................................................................9
Lower Court Decisions .........................................................................................................9
Related Services........................................................................................................................ 11
Least Restrictive Environment .................................................................................................. 12
Stay Put .................................................................................................................................... 13
Seclusion and Restraints............................................................................................................ 15
Retaliation and Harassment ....................................................................................................... 17
Due Process Procedures ............................................................................................................ 17
Overview ............................................................................................................................ 17
Resolution Sessions and Mediation ..................................................................................... 18
Review of Complaint’s Sufficiency ..................................................................................... 19
LEA Suits Against the State................................................................................................. 19
Parental Rights.................................................................................................................... 20
Section 504 and the Americans with Disabilities Act (ADA)...................................................... 21
Burden of Proof ........................................................................................................................ 22
Remedies .................................................................................................................................. 23
Private Schools ................................................................................................................... 23
Compensatory Education .................................................................................................... 25
Section 1983 Actions .......................................................................................................... 25
Attorneys’ Fees ......................................................................................................................... 26
Background ........................................................................................................................ 26
Lower Court Decisions ....................................................................................................... 27
Expert Witness Fees .................................................................................................................. 29
Systemic Compliance Complaints ............................................................................................. 30
Contacts
Author Contact Information ...................................................................................................... 31
Congressional Research Service
IDEA: Selected Judicial Developments Following the 2004 Reauthorization
Introduction
The Individuals with Disabilities Education Act (IDEA)1 is the major federal statute for the
education of children with disabilities. IDEA both authorizes federal funding2 for special
education and related services3 and, for states that accept these funds,4 sets out principles under
which special education and related services are to be provided. The requirements are detailed,
especially when the regulatory interpretations are considered. The major principles include the
following requirements:
•
States and school districts make available a free appropriate public education
(FAPE)5 to all children with disabilities, generally between the ages of 3 and 21.
States and school districts identify, locate, and evaluate all children with
disabilities, regardless of the severity of their disability, to determine which
children are eligible for special education and related services.
•
Each child receiving services has an individual education program (IEP) spelling
out the specific special education and related services to be provided to meet his
or her needs. The parent must be a partner in planning and overseeing the child’s
special education and related services as a member of the IEP team. “To the
maximum extent appropriate,” children with disabilities must be educated with
children who are not disabled; and states and school districts provide procedural
safeguards to children with disabilities and their parents, including a right to a
due process hearing, the right to appeal to federal district court, and, in some
cases, the right to receive attorneys’ fees.
IDEA was originally enacted in 1975 in response to judicial decisions holding that when states
provide an education for children without disabilities, they must also provide an education for
children with disabilities. 6 IDEA has been the subject of numerous reauthorizations; the most
1
20 U.S.C. §1400 et seq. For a more detailed discussion of IDEA, see CRS Report RS22590, The Individuals with
Disabilities Education Act (IDEA): Overview and Selected Issues, by (name redacted) and (name redacted).
2
Although funding issues are beyond the scope of this report, it should be noted that the Ninth Circuit, in Arizona State
Board for Charter Schools v. U.S. Department of Education, 464 F.3d 1003 (9th Cir. 2006), examined whether a forprofit charter school was eligible for federal funds under IDEA and held that a “a natural reading of the [statutory] text
conveys clear congressional intent that all schools, including charter schools, must be non profit to receive IDEA and
ESEA funds.” For a discussion of this case and the use of IDEA funds for charter schools see Mark D. Evans, “An End
to Funding of For-Profit Charter Schools?” 70 U. Colorado L. Rev. 617 (2008). For a discussion of IDEA funding
generally see CRS Report RL32085, Individuals with Disabilities Education Act (IDEA): Current Funding Trends, by
(name redacted).
3
Related services (for example, physical therapy) assist children with disabilities to help them benefit from special
education (20 U.S.C. §1401(26), P.L. 108-446 §602(26)).
4
Currently, all states receive IDEA funding.
5
It should be emphasized that what is required under IDEA is the provision of a free appropriate public education. The
Supreme Court, in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176
(1982), held that this requirement is satisfied when the state provides personalized instruction with sufficient support
services to permit a child to benefit educationally from that instruction, and that this instruction should be reasonably
calculated to enable the child to advance from grade to grade. IDEA does not require that a state maximize the potential
of children with disabilities.
6
PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972); Mills v. Board of Education of the District of
Columbia, 348 F.Supp. 866 (D.D.C. 1972). For a discussion of the history of IDEA see CRS Report 95-669, The
Individuals with Disabilities Education Act: Congressional Intent, by (name redacted).
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IDEA: Selected Judicial Developments Following the 2004 Reauthorization
recent reauthorization was P.L. 108-446 in 2004. P.L. 108-446 included specific authorizations for
appropriations through 2011.7 Congress is currently beginning the process of identifying potential
issues for the next reauthorization.8 This report examines the Supreme Court decisions, and
selected lower court decisions since July 1, 2005, the effective date of P.L. 108-446.9
Definition of Disability
A key component of IDEA is the definition of a child with a disability. Unlike the definitions of
disability in the Americans with Disabilities Act (ADA)10 and Section 504 of the Rehabilitation
Act, 11 the IDEA definition is categorical, not functional, and contains a requirement that the child
needs special education and related services. The IDEA definition states the following:
CHILD WITH A DISABILITY.—‘‘(A) IN GENERAL.—The term ‘child with a disability’
means a child—‘‘(i) with mental retardation, hearing impairments (including deafness),
speech or language impairments, visual impairments (including blindness), serious emotional
disturbance (referred to in this title as ‘emotional disturbance’), orthopedic impairments,
autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
‘‘(ii) who, by reason thereof, needs special education and related services.12
In Hansen v. Republic R-III School District,13 the court examined whether a child who had been
diagnosed with conduct disorder, bipolar disorder, and attention deficit hyperactivity disorder
(ADHD) was a child with a disability under IDEA. Finding that the child met the IDEA
definitional categories of serious emotional disturbance and other health impairments, the court
noted that the child was not “merely socially maladjusted” but struggled to pass his classes and
standardized tests. Similarly, the child was found to have a diagnosis of ADHD and his
educational performance was affected by the condition.
The need for special education and related services was key in other court decisions. Several
courts of appeal decisions have examined whether a child who falls within one of the categories
of disabilities but whose disability may have a minimal effect on education is a child with a
7
20 U.S.C. §1411(i). For years after 2011, P.L. 108-446 authorized “such sums as may be necessary for fiscal year
2012 and each succeeding fiscal year.”
8
The Department of Education and other groups have begun to look at issues surrounding IDEA reauthorization. See
The Brookings Institution, “Building on IDEA: Policy Solutions to Improve U.S. Special Education” (January 18,
2011), http://www.brookings.edu/~/media/Files/events/2011/0118_special_education/20110118_special_education.pdf.
9
The lower court cases were identified by a LEXIS search using the term “individuals with disabilities education act
and date aft 2004” and a LEXIS search for “P.L. 108-446.” It should be emphasized that although P.L. 108-446 was
enacted in December 2004 and had a July 1, 2005, effective date, many of the cases located by the LEXIS search dealt
with events that occurred prior to the effective date of P.L. 108-446, and were therefore subject to the previous
statutory language. Generally, these cases are not discussed except where they raise a significant issue that was not
resolved by the 2004 reauthorization. It should also be noted that a number of the cases examined concerned whether
P.L. 108-446 applied retroactively, and held that the 2004 reauthorization was not retroactive. See e.g., Anna Hood v.
Encinitas Union School District, 486 F.3d 1099 (9th Cir. 2007); Anthony v. District of Columbia, 463 F. Supp. 2d 37
(D.D.C. 2006); Tereance D. v. School District of Philadelphia, 570 F. Supp. 2d 739 (2008).
10
42 U.S.C. §12102, as amended by P.L. 110-325.
11
29 U.S.C. §705(20), as amended by P.L. 110-325.
12
20 U.S.C. §1401(3).
13
632 F.3d 1024 (8th Cir. 2011).
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IDEA: Selected Judicial Developments Following the 2004 Reauthorization
disability and thus covered by IDEA. In L.I. v. Maine School Administrative District No. 55,14 the
First Circuit Court of Appeals found that a child with Asperger’s Syndrome and an adjustment
disorder with depressed mood was a child with a disability under IDEA even though she had high
grades, generally non-disruptive behavior, and “undisputed intellectual ability.” The court
rejected the argument that IDEA is limited to children whose disabilities “significantly impact
educational performance,” noting that neither the statute nor its regulations contain this limiting
language. 15 Similarly, in Board of Education of Montgomery County v. S.G.16 the school argued
that a child with schizophrenia was not a child with a disability because the disability did not
adversely affect her school performance. The Fourth Circuit Court of Appeals rejected this
argument after finding that the child had missed a substantial amount of school due to
hospitalizations, failed to complete many of her assignments, and, if returned to the public school
environment, would most likely be hearing voices again.
On the other hand, the Ninth Circuit in R.B. v. Napa Valley Unified School District17 held that a
child with ADHD, depression, reactive attachment disorder, and post traumatic stress disorder
who exhibited violent tendencies was not eligible for IDEA services since her inappropriate
behavior did not adversely affect her educational performance. The fact that the child received a
Section 504 plan and behavioral supports did not make her eligible under IDEA. In Alvin
Independent School District v. AD,18 the Fifth Circuit also found no adverse educational effect
from the child’s ADHD. Mr. and Mrs. N.C. v. Bedford Central School District19 examined
whether a child with dysthymic disorder met the requirements of the IDEA regulations for
seriously emotionally disturbed and found that the child’s behavior fell short of the requirements
for seriously emotionally disturbed. The Second Circuit also noted that even if the child qualified
as seriously emotionally disturbed, there was insufficient evidence that his educational
performance was adversely affected. 20
Child Find
IDEA requires that in order to receive funds under the statute, a state must submit a plan to the
Secretary of Education indicating that a state has certain policies and procedures in effect. Among
these is the requirement that all children with disabilities and who are in need of special
education, are identified, located, and evaluated. 21 This requirement is referred to as child find.
Although this requirement has not been heavily litigated, the ninth circuit held in Compton
14
480 F.3d 1 (1st Cir. 2007).
15
Id. at 38.
16
230 Fed Appx. 330 (4th Cir. 2007).
17
496 F.3d 932 (9th Cir. 2007).
18
503 F.3d 378 (5th Cir. 2007).
19
300 Fed. Appx. 11 (2d Cir. 2008).
20
See also, Marshal Joint School District No. 2 v. C.D., 616 F.3d 632(7th Cir. 2010), where the court found that a child
with Ehlers-Danlos Syndrome (EDS), a genetic disease characterized by joint hyper-mobility, was a not a child with a
disability under IDEA since his educational performance was not adversely affected. Although he needed physical
therapy, the court, citing the IDEA regulations at 34 C.F.R. §300.8(a)(2)(i), emphasized that physical therapy is a
related service that the school is not required to provide unless the child is a child with a disability under IDEA who
need special education.
21
20 U.S.C. §1412(a)(3); 34 C.F.R. §300.111 (2010).
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IDEA: Selected Judicial Developments Following the 2004 Reauthorization
Unified School District v. Addison22 that a school district who failed to evaluate a ninth grader
who failed all her classes, colored with crayons and played with dolls in class failed to meet
IDEA’s child find requirement and that such a failure could be the subject of a due process
complaint. Although the Supreme Court has not yet made a determination regarding whether the
case will be heard, the Court did ask the Department of Justice for its views on the issue.23 The
issue as presented to the Court is whether the parent of a child with a disability has a right to a
due process hearing alleging negligence because of school officials’ failure to arrange an
educational program for the child, or if due process suits are only allowed when the school
district makes an intentional decision.
Free Appropriate Public Education (FAPE)
Statutory Provision
The core requirement of IDEA is that a state must provide children with disabilities a free
appropriate public education in order to receive federal funding under the act.24 FAPE is defined
in the statute as meaning “special education and related services that—(A) have been provided at
public expense, under public supervision and direction, and without charge; (B) meet the
standards of the State educational agency; (C) include an appropriate preschool, elementary
school, or secondary school education in the State involved; and (D) are provided in conformity
with the individualized education program required under section 614(d).”25
Supreme Court Decision in Rowley
A seminal decision on the requirements of FAPE, Board of Education of the Hendrick Hudson
Central School District v. Rowley,26 decided in 1982, was the first IDEA case to reach the
Supreme Court. The Supreme Court noted that there was no substantive language in IDEA
regarding the level of education to be accorded to children with disabilities and observed that
“(i)mplicit in the congressional purpose of providing access to a ‘free appropriate public
education’ is the requirement that the education to which access is provided be sufficient to confer
some educational benefit upon the handicapped child.”27 The Court concluded that “the ‘basic
floor of opportunity’ provided by the Act consists of access to specialized instruction and related
services which are individually designed to provide educational benefit to the handicapped
child.”28 The Court held that the requirement of FAPE is met when a child is provided with
personalized instruction with sufficient support services to benefit educationally from that
instruction. This instruction must be provided at public expense, meet the state’s educational
standards, must approximate the grade levels used in the state’s regular education, and must
comport with the child’s IEP. The Court found that when a child with a disability is
22
598 F.3d 1181 (9th Cir. 2010), Petition for certiorari filed (Jan. 6, 2011) (No.10-886).
2011 U.S. LEXIS 2986; 79 U.S.L.W. 3591 (April 18, 2011),
24
20 U.S.C. §1412(a)(1).
25
20 U.S.C. §1401(9).
26
458 U.S. 176 (1982).
27
Id. at 200.
28
Id. at 201.
23
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IDEA: Selected Judicial Developments Following the 2004 Reauthorization
mainstreamed, “the system itself monitors the educational progress of the child.... The grading
and advancement system thus constitutes an important factor in determining educational
benefit.”29 Therefore, the IEP “should be formulated in accordance with the requirements of the
Act and, if the child is being educated in the regular classrooms of the public education system,
should be reasonably calculated to enable the child to achieve passing marks and advance from
grade to grade.”30 However, the states are not required to “maximize” each child’s potential.31 If
the child is progressing from grade to grade and making measurable and adequate gains, the
FAPE requirement is met.
The Supreme Court also stated that in ensuring that the requirements of the statute have been met,
courts must be careful to avoid imposing their view of preferable educational methods upon the
states. The primary responsibility for formulating the education provided was left by IDEA to
state and local educational agencies.32 As the Court noted, determining when children with
disabilities are “receiving sufficient educational benefits to satisfy the requirements of the Act
presents a more difficult problem”33 than complying with requirements for access to education.
Because of the wide spectrum of disabilities, the Court did not attempt to establish any one test
for determining the adequacy of educational benefits and confined its analysis to the facts of the
case.
Lower Court Decisions
Rowley remains a key decision under IDEA and is often cited by courts attempting to determine
the parameters of a free appropriate public education. 34 However, the lower courts have varied in
how expansively they have interpreted Rowley, with some courts interpreting Rowley to support
schools’ IEPs if the procedural requirements have been met, even if the educational progress is
minimal. For example, in Fort Zumwalt School District v. Clynes,35 the Eighth Circuit
emphasized Rowley’s “access to education” requirement and held that the IEP was adequate. The
court noted that the child was making progress, earning passing marks and advancing to the next
grade, despite reading proficiency scores in the second to ninth percentile. However, the
dissenting opinion described the child’s achievement as “trivial” and argued that “(t)his cannot be
the sort of education Congress had in mind when it enacted IDEA.”36 Some courts have
29
Id at 203.
Id. at 203-204.
31
Id. at 198.
32
In Lessard v. Wilton-Lyndeborough Cooperative School District, 592 F.3d 267 (1st Cir. 2010), the First Circuit cited
Rowley emphasizing that “an ideal or perfect plan is not required” and that deference to the educational authorities is
required.
33
Id. at 202.
34
The 2004 reauthorization of IDEA has been found not to affect the Rowley standard. See Mr. and Mrs. C. v. Maine
School Administrative District No. 6, 538 F. Supp. 2d 298 (D. Me.2008). An argument that the 1997 IDEA
reauthorization, P.L. 105-17, changed the “educational benefit” standard of Rowley was rejected by the Ninth Circuit in
J.L., M.L. and K.L. v. Mercer Island School District, 592 F.3d 938 (9th Cir. 2010).
35
119 F.3d. 607 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998).
30
36
Id. at 617 (dissenting opinion by Judge Gibson). For a more detailed discussion of Fort Zumwalt see Charlene K.
Quade, “A Crystal Clear Idea: The Court Confounds the Clarity of Rowley and Contorts Congressional Intent,” 23
Hamline J. Pub. L. and Policy 37 (2001).
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emphasized that IDEA requires the provision of educational services and medical services,
particularly mental health needs, are not covered.37
Other courts have read Rowley more expansively. For example, in Polk v. Cent. Susquehanna
Intermediate Unit 16,38 the Third Circuit examined the “some educational benefit” language in
Rowley and held that it required an IEP to provide more than de minimis educational benefit. 39
Similarly, the Fifth Circuit, in Cypress-Fairbanks Indep. School District v. Michael F.,40 quoted
from Rowley and concluded that “the educational benefit that an IEP is designed to achieve must
be meaningful.”41 In order to determine whether an IEP meets this standard, the CypressFairbanks court identified four factors: (1) the program is individualized; (2) the program is
administered in the least restrictive environment; (3) the services are provided in a coordinated
and collaborative manner; and (4) positive academic and nonacademic benefits are
demonstrated.42 Other courts have looked at academic achievement testing, as well as grades, to
measure educational benefit. For example, in Falzett v. Pocono Mountain School District,43 the
court found that, despite allegations of missed days and limited curriculum, a student whose SAT
scores improved and who received excellent grades, qualifying him for the Junior National Honor
Society, had received FAPE under IDEA. However, in Ringwood Board of Education v. K.H.J.,44
the Third Circuit found that when a child has above average intellectual ability IDEA requires
more than a negligible benefit, and noted that “expecting a child with ‘above average’ intelligence
to perform in the ‘average’ range hardly qualifies as ‘maximizing’ that child’s potential.”45
Procedural or other violations do not always give rise to a violation of FAPE.46 Generally,
procedural violations must affect the child’s substantive rights.47 For example, FAPE has been
37
See Shaw v. Weast, 364 Fed. Appx. 47 (4th Cir. 2010), where the Fourth Circuit found that a student whose
emotional and mental needs required a level of care beyond her current placement was not entitled to state funding of
those needs when the student’s educational needs were being addressed. Similarly, the Ninth Circuit in Ashland School
District v. Parents of Student E.H., 587 F.3d 1175 (9th Cir. 2009), and Ashland School District v. Parents of Student
R.J., 588 F.3d 1004 (9th Cir. 2009), affirmed the district court decisions that the students’ residential placements were
not for educational needs. But see Alleyne v. New York State Education Department, 691 F.Supp 2d 322(N.D.N.Y.
2010).
38
853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989).
39
Id. at 180-185. See also R.H. v. Plano Independent School District, 607 F.3d 1003(5th Cir. 2010), Cert. den. 2011
U.S. LEXIS 1330, 79 U.S.L.W. 3475 (U.S. Feb. 22, 2011).
40
118 F.3d 245 (5th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).
41
Id. at 248.
42
Id. at 253.
43
152 Fed. Appx. 117 (3d Cir. 2005). See also A.H. v. Department of Education of the City of New York, 394 Fed.
Appx. 718 (2d Cir. 2010), where the court stated that “the relevant inquiry was not whether the proposed IEP provided
all possible support to ensure that J.H. did not lose focus, but rather whether objective evidence indicated that the child
was likely to progress, not regress, under the proposed plan.”; Thompson R2-J School District v. Luke P., 540 F.3d
1143 (10th Cir. 2008), cert. den. 129 S. Ct. 1356 (Feb. 23, 2009), where the progress made by a student with autism was
found to be sufficient.
44
258 Fed. Appx. 399 (3d Cir. 2007).
45
Id. at 410. Similarly, in D.S. v. Bayonne Board of Education, 602 F.3d 553 (3d Cir. 2010), the court found that high
grades did not necessarily mean that FAPE was provided, especially when the high grades were achieved in special
education classes.
46
A.H. v. Department of Education of the City of New York, 394 Fed. Appx. 718 (2d Cir. 2010); Fitzgerald v. Fairfax
County School Board, 556 F.Supp.2d 543 (E.D. Va. 2008); School Board of Independent School District No. 11,
Anoka-Hennepin, Minnesota v. Renollett, 440 F.3d 1007 (8th Cir. 2006).
47
T.T. v. District of Columbia, 2007 U.S. Dist. LEXIS 52547 (July 23, 2007); Hunter v. District of Columbia, 2008
U.S. Dist. LEXIS 70009 (September 17, 2008); Kingsmore v. District of Columbia, 466 F.3d 118 (D.C. Cir. 2006).
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found to require that services mandated by an IEP be implemented as soon as possible after the
IEP development, not immediately or within 30 days. 48 Similarly, inaccessible facilities do not
necessarily violate FAPE if there is general program accessibility.49 In addition, FAPE has been
found not to be violated when a resolution session is improperly convened if there was not
substantial effect on the child’s educational opportunities. 50 However, certain procedural
violations may be significant enough to be a denial of FAPE. In N.B. and C.B. v. Hellgate
Elementary School District,51 the Ninth Circuit held that the school’s failure to evaluate a child in
all areas of suspected disability was a procedural error that denied FAPE. A denial of FAPE was
also found when the LEA unilaterally scheduled an IEP meeting without attempting to reach a
mutually agreed upon time with the parents.52
Educational Standards and the No Child Left Behind Act (NCLBA)
The application of the Supreme Court’s analysis in Rowley to current controversies is somewhat
confused by the change in the usage of the term “educational standards.” Although the Supreme
Court in Rowley required that the instruction given to a child with a disability meet the state’s
educational standards, the term “educational standards” has taken on a different meaning in recent
years. Currently, the term “educational standards” is likely to refer to specific content-based
standards that delineate what a child should know and be able to perform at various points in his
or her educational career.
The 1997 Amendments to IDEA53 reflected the standards-based education movement. P.L. 105-17
significantly changed the IEP requirements and required that the IEP include, among others, a
statement of the child’s present levels of educational performance, including the effect of the
child’s disability on the child’s involvement and progress in the general curriculum, and a
statement of measurable annual goals designed to enable the child to progress in the general
curriculum. 54 In addition, in the statement of findings for the 2004 reauthorization, P.L. 108-446
states that “[a]lmost 30 years of research and experience has demonstrated that the education of
children with disabilities can be made more effective by—(A) having high expectations for such
children and ensuring their access to the general curriculum in the regular classroom to the
maximum extent possible.”55
Given the fact that the standards-based education movement, as reflected in IDEA and the No
Child Left Behind Act (NCLBA),56 has changed the standards from what was required in the
48
DD v. New York City Board of Education, 465 F.3d 503 (2d Cir. 2006), rehearing denied, 480 F.3d 138 (2d Cir.
2007).
49
Logwood v. Louisiana Department of Education, 197 Fed. Appx. 302 (5th Cir. 2006). The fact that certain parts of
the school facilities were inaccessible to a student in a wheelchair did not deny the student a meaningful educational
benefit and thus violate FAPE since he had an alternative route to his classrooms and activities on the stage of the
auditorium would have been moved to the accessible gymnasium if necessary.
50
O.O. v. District of Columbia, 573 F.Supp.2d 41 (2008).
51
541 F.3d 1202 (9th Cir. 2008).
52
Drobnicki v. Poway Unified School District, 358 Fed. Appx. 788 (9th Cir. 2009).
53
P.L. 105-17.
54
P.L. 105-17 §614(d)(1)(A), 20 U.S.C. §1414(d)(1)(A). The 2004 IDEA reauthorization, P.L. 108-446, continued the
standards-based requirements of P.L. 105-17.
55
20 U.S.C. §1400(c)(5)(A).
56
20 U.S.C. §§6301-6777. For a discussion of the requirements of the NCLBA, see CRS Report RL31284, K-12
(continued...)
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version of the law the Supreme Court interpreted in Rowley, questions have been raised
concerning the current application of Rowley. Parents of students with disabilities have argued
that FAPE requirements have been changed by NCLBA in several cases but have not been
successful. 57 Similarly, an unsuccessful argument has been made that there is an inherent conflict
between IDEA and NCLBA. 58
Peer-Reviewed Research
The 2004 Amendments to IDEA include a requirement that specially designed instruction and
related services be “based on peer-reviewed research to the extent practicable.”59 Commentary to
the final regulations indicates that peer-reviewed research “generally refers to research that is
reviewed by qualified and independent reviewers to ensure that the quality of the information
meets the standards of the field before the research is published.”60 Similar to the educational
standards issue discussed above, it could be argued that the peer-reviewed research requirement is
difficult to reconcile with Rowley’s some educational benefit requirement. 61
At least one court of appeals has addressed this issue. In Joshua A. v. Rocklin Unified School
District,62 the student argued that his IEP violated IDEA because it was not based on peer(...continued)
Education: Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by (name redacted). For a
discussion of the relationship between the NCLBA and the IDEA, see CRS Report RL32913, The Individuals with
Disabilities Education Act (IDEA): Interactions with Selected Provisions of the No Child Left Behind Act (NCLB), by
(name redacted) and (name redacted).
57
See e.g., Leighty v. Laurel School District, 457 F.Supp.2d 546 (W.D. Pa. 2006). “Although the IDEA clearly
conditions the States’ receipt of IDEA funds on the inclusion of disabled children in the assessments mandated by the
NCLBA, it does not require that FAPE determinations be based on the results of those assessments, nor does it require
that the IEP’s prepared for disabled children be designed specifically to enhance their scores on standardized tests.
While it is clear that both the IDEA and the NCLBA require recipient States to include disabled children in the
assessments, with the modifications necessitated by their disabilities, neither statute indicates that FAPE determinations
under the IDEA are controlled by the performance of disabled children on assessments required under the NCLBA.” At
40-41. Fisher v. Stafford County Township Board of Education, 2007 U.S. Dist. LEXIS 14003 (February 27, 2007),
aff’d 289 Fed. Appx. 520 (3d Cir. 2008). “There is absolutely no support in the statutes or case law for Fisher’s attempt
to engraft the achievement standards references in the NCLB Act onto the IDEA.” At 42. Kirby v. Cabell County
Board of Education, 2006 U.S. Dist LEXIS 67254 (S.D. W.Va. September 19, 2006). “While the statutory language of
20 U.S.C. §6311 requires that state plans are coordinated with the IDEA along with other programs under Title 20 ... ,
there is no language in the Act that places additional obligations on the development or assessment of a child’s IEP....
The obligations contained in the section referenced by the plaintiffs are placed on the state in regards to all students. It
does not contain specific obligations to children with disabilities nor does it alter the Court’s standard of review in
regards to the IEP in question.” At 20. For a discussion of this issue see Robin Bucaria, “Expanding the Definition of
FAPE under NCLB: Why Courts Give FAPE the Slip and Leave it Swimming in a Sea of Alphabet Soup,” 10 J. L.
Fam. Studies 237 (2007).
58
Board of Education of Ottawa Township High School District 140 v. Spellings, 517 F.3d 922 (7th Cir. 2008). See
also State of Connecticut v. Duncan, 612 F.3d 107 (2d Cir. 2010), Cert. den., 131 S.Ct. 1471, 179 L.Ed.2d 360, 2011
U.S. LEXIS 1115, 79 U.S.L.W. 3418 (U.S. Feb. 22, 2011).
59
20 U.S.C. §1414(d)(1)(A)(i)(IV).
60
71 FED. REG. 46665 (August 14, 2006).
61
For a discussion concluding that “[t]he conservative ‘some benefit’ interpretation of Rowley, as applied to maintain
the school district status quo, appears to be antithetical to the outcome based goals which led to the inclusion of PRR in
IDEA 2004,” see Ilene Young, “Peer-Reviewed Research (PRR)—What Effect on FAPE? From the Parents’ Bar,”
Lehigh University 37th Annual Special Education Law Conference, http://documents.jdsupra.com/7eab09a0-cb634b26-851a-32ae53b6f56d.pdf.
62
319 Fed Appx. 692 (9th Cir. 2009).
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reviewed research. The court rejected this argument finding that the school’s “eclectic approach”
was sufficient and noted that “[w]e need not decide whether District made the best decision or a
correct decision, only whether its decision satisfied the requirements of the IDEA.”63 The court
also emphasized that courts must be careful to avoid imposing their view of preferable
educational methods upon the states.
The Individualized Education Program (IEP)
Statutory Provisions
After a child has been identified as a child with a disability under IDEA, an Individualized
Education Team is formed to write an individualized education program for the child.64 IDEA
contains detailed requirements for the IEP. The IEP must include a statement of the child’s present
levels of academic achievement and functional performance; a statement of measurable annual
goals; a description of how these goals are to be met; a statement of the special education and
related services to be provided; and an explanation of the extent to which the child is to be
educated with children without disabilities.65 Since the IEP is the way FAPE is implemented, it is
a key component of IDEA and has been the subject of numerous judicial decisions. Generally,
these cases have adopted the Rowley two-part inquiry: first, the court determines whether IDEA’s
procedures have been complied with; second, the court determines whether the IEP is reasonably
calculated to provide the child with educational benefits.66
Lower Court Decisions
The exact parameters of an IEP have been the subject of several decisions. Generally, an IEP does
not have to be “perfect” to be in compliance with IDEA, but must be “reasonably calculated to
enable the child to receive educational benefits.”67 In School Board of Independent School
District No. 11 v. Joshua Renollett,68 the Eighth Circuit court of appeals found that although there
were some flaws in the child’s IEP, since these flaws did not compromise his right to an
appropriate education or deprive him of educational benefits, there was no violation of IDEA. 69
63
Id. at 695.
20 U.S.C. §1414(d).
65
Id.
66
See Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176, 206-207 (1982).
67
Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).
68
440 F.3d 1007 (8th Cir. 2006).
69
Similarly, in Bradley v. Arkansas Department of Education,443 F.3d 965 (8th Cir. 2006), the court found that
although the child’s IEP and its implementation may not have been perfect, the IEP was reasonably calculated to
provide educational benefits and thus did not violate IDEA. See also Mr. and Mrs. B v. East Granby Board of
Education, 201 Fed. Appx. 834 (2d Cir. 2006), rejecting the argument that the child’s IEPs violated IDEA since they
did not include the recommendations of experts retained by the parents. The IEPs were found to be reasonably
calculated to provide educational benefit. In G.N. and S.N. v. Board of Education of the Township of Livingston, 309
Fed. Appx. 542 (3d Cir. 2009), the absence of a requested modification to the IEP did not mean that the IEP was not
reasonably designed to confer a meaningful educational benefit. There is also no requirement that the IEP name a
specific school location. See T.Y. v. New York City Department of Education, 584 F.3d 412 (2d Cir. 2009), cert. den.
130 S. Ct. 3277 (May 17, 2010).
64
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Similarly, the Second Circuit in Cabouli v. Chappaqua Central School District70 found that the
evidence supporting the adequacy of the IEP, including the child’s recent social progress,
indicated that the child would likely make educational progress under the IEP and, therefore,
there was no violation of IDEA. The lack of a functional behavioral assessment in an IEP does
not necessarily mean that the IEP is invalid. 71 The Sixth Circuit in Nack v. Orange City School
District72 found that procedural violations that did not cause the student any substantive harm
were not a violation of IDEA.73 In addition, the court in Nack also held that a lack of progress
during one school year does not necessarily indicate an IDEA violation since IDEA does not
guarantee success, but requires that a student receive sufficient specialized services to benefit
from his or her education. 74
On the other hand, courts have found that an IEP which does not provide the child with
educational benefits violates IDEA. In A.K. v. Alexandria City School Board,75 the Fourth Circuit
held that an IEP which stated that the child should be placed at an unidentified private day school
was not reasonably calculated to provide educational benefits and, therefore, was a violation of
IDEA. And in M.L. v. Federal Way School District,76 the Ninth Circuit found that not including a
regular education teacher on the IEP team resulted in a “loss of educational opportunity” that
amounted to a denial of FAPE. However, in R.B. v. Napa Valley Unified School District,77 the
Ninth Circuit held that IDEA did not require the participation of the child’s current special
education teacher as long as a special education teacher who has actually taught the child was
present.
The input of parents in an IEP has been the subject of several recent decisions. Generally, courts
have held that “the right of parents to control the content of the IEP is limited.”78 For example, in
Shelby S. v. Conroe Independent School District,79 the Fifth Circuit found that in order to develop
70
202 Fed. Appx. 519 (2d Cir. 2006).
A.C. and M.C. v. Board of Education of the Chappaqua Central School District, 553 F.3d. 165 (2d Cir. 2009).
72
454 F.3d 604 (6th Cir. 2006).
73
See also A.H. v. Department of Education of the City of New York, 394 Fed. Appx. 718 (2d Cir. 2010), where the
court concluded that the absence of the child’s special education teacher from the IEP meeting “did not impede the
child’s right to a free appropriate education, limit the parents’ ability to participate in the decision making process, or
result in the denial of educational benefits.” At 720.
74
Id. at 22. See also Lathrop R-II School District v. Gray, 611 F.3d 419 (8th Cir. 2010), cert. den. 131 S.Ct. 1017, 179
L.Ed.2d 843, 2011 U.S. LEXIS 812 (Jan. 18, 2011), where the court held that even if there was a technical violation
regarding the scheduling of an IEP meeting, it did not affect the IEP or deprive the child of educational benefit, and
thus was not a violation of IDEA.
75
484 F.3d 672 (4th Cir. 2007).
76
394 F.3d 634 (9th Cir. 2004).
77
496 F.3d 932 (9th Cir. 2007). See also, A.G. v. Placentia-Yorba Linda Unified School District, 320 Fed. Appx. 519
th
(9 Cir. March 20, 2009); Mahoney v. Carlsbad Unified School District, 2011 U.S. App. LEXIS 8728 (9th Cir. April
28, 2011).
78
J.R. v. Sylvan Union School District, 2008 U.S. Dist. LEXIS 18168 (March 10, 2008). See also, A.E. v. Westport
Board of Education,454 F.3d 450 (5th Cir. 2006),where the court held that an IEP may be valid even if there is not
consensus on all its aspects and, since the IEP was reasonably calculated to enable the child to receive educational
benefits, there was no violation of IDEA. See also Systema v. Academy School District No. 20, 538 F.3d 1306 (10th
Cir. 2008), where the court found that the fact that the parents had not signed a draft IEP did not affect its status. In
J.W. v. Fresno Unified School District, 626 F.3d 431 (9th Cir. 2010), the parents’ insistence during the IEP meeting that
their child be mainstreamed supported the court’s determination that the child’s mainstream placement did not violate
IDEA despite the parents’ later arguments for a private school placement.
79
454 F.3d 450 (5th Cir. 2006).
71
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an appropriate IEP, the school could perform an independent medical evaluation despite a lack of
parental consent. And in Lessard and Lessard v. Wilton-Lyndeborough Cooperative School
District and New Hampshire Department of Education,80 the First Circuit held that an IEP was
not procedurally deficient due to incompleteness and noted, “[l]ine-drawing is often difficult, and
in the IEP context it is impossible to draw a precise line separating healthy requests for parental
input from impermissible demands that parents do the school system’s work.”81
Despite the limited control of parents over the IEP, courts have found for the parents in IEP cases.
For example, in County School Board of York County v. A.L.,82 the Fourth Circuit found that a
lack of prior notice to a proposed IEP change and a failure to inform the parents of their due
process rights violated IDEA. Similarly, a finding that the school district determined the child’s
placement before the IEP meeting was found to violate IDEA’s procedural requirements.83 A
school’s scheduling of an IEP meeting without first inquiring about the parents’ availability and
the school’s denial of the parents’ request to reschedule was found to deny the student FAPE.84
Related Services
As noted above, IDEA’s requirement of a free appropriate public education is the cornerstone of
the act. FAPE is defined in part as requiring “special education and related services.”85 Related
services are defined as meaning
transportation, and such developmental, corrective, and other supportive services (including
speech-language pathology and audiology services, interpreting services, psychological
services, physical and occupational therapy, recreation, including therapeutic recreation,
social work services, school nurse services designed to enable a child with a disability to
receive a free appropriate public education as described in the individualized education
program of the child, counseling services, including rehabilitation counseling, orientation
and mobility services, and medical services, except that such medical services shall be for
diagnostic and evaluation purposed only) as may be required to assist a child with a
disability to benefit from special education, and includes the early identification and
assessment of disabling conditions in children.86
Two Supreme Court decisions under IDEA have involved the concept of related services, and
both have involved the issue of what is a medical service. In Irving Independent School District v.
Tatro,87 the Court examined the case of an eight-year-old girl with spina bifida who required clean
intermittent catheterization (CIC), and held that the school must provide the service. The Court
held that services affecting both the medical and educational needs of a child must be provided
under IDEA if (1) the child has a disability so as to require special education; (2) the service is
necessary to help a child with a disability benefit from special education; and (3) a nurse or other
80
518 F.3d 18 (1st Cir. 2008).
81
Id. at 20.
82
194 Fed. Appx. 173 (4th Cir. 2006).
83
H. Berry v. Las Virgenes Unified School District, 370 Fed. Appx. 843 (9th Cir. 2010).
84
Drobnicki v. Poway Unified School District, 358 Fed. Appx. 788 (9th Cir. 2009).
85
20 U.S.C. §1401(9).
86
20 U.S.C. §1401(26) (emphasis added).
87
468 U.S. 883 (1984).
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qualified person who is not a physician can provide the service. Services that could be provided
outside the school day would not need to be provided. Tatro drew a bright line between services
that had to be provided by a doctor and those that could be provided by a person who was not a
physician. However, after Tatro, some courts of appeal did not apply this bright line but used
other factors, such as the nature and extent of services. This set the stage for another Supreme
Court decision in 1999, Cedar Rapids Community School District v. Garret F.88
Garret F. involved a child who was paralyzed from the neck down as a result of a motorcycle
accident when he was four years old. Since the child was ventilator dependent, he required
substantial services including providing suction on his tracheotomy tube and manually pumping
air through an air bag when suction is being provided. The school denied the parents’ request for
services, and proposed a test for related services in which the outcome would depend on a series
of factors, such as whether the care was continuous and the cost of the services. The Court
rejected this proposed test and used the same reasoning it had used in Tatro, finding that the
medical services exclusion from the definition was limited to the services of physician or a
hospital. This holding, the Court stated, was in keeping with the overarching purpose of IDEA “to
open the door of public education to all qualified children.”89
The 2004 reauthorization dealt with this issue by establishing risk pools for high-need children
with disabilities. 90 States are permitted to reserve 10% of the funds reserved for other state
activities (or 1% to 1.05% of the overall state grant) to establish and maintain a risk pool to assist
LEAs serving high-need children with disabilities. Related services have not given rise to a large
number of recent IDEA cases. Generally, the cases have emphasized the broad discretion of a
federal court to define what services are required to enable a child with a disability to benefit
from special education, and have applied the Tatro analysis. 91
Least Restrictive Environment
IDEA requires that children with disabilities, to the maximum extent appropriate, be educated
with children who are not disabled and that separate schooling or special classes occur only when
the nature or severity of the disability is such that “education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.”92
Several recent courts of appeal decisions have followed a two-pronged approach, first enunciated
in Daniel R.R. v. State Board of Education,93 to determine whether an IEP places a student in the
least restrictive environment. First, a court must consider whether education in the regular
classroom with the use of supplementary services can be achieved satisfactorily. Second, if such
placement cannot be achieved satisfactorily, the court must consider whether the school has
mainstreamed the child to the maximum extent appropriate. The first prong includes several
factors: whether the school district has made reasonable efforts to accommodate the child in the
88
526 U.S. 66 (1999).
Id. at 78.
90
20 U.S.C. §1411(e)(3).
91
See M.K. v. Sergi, 554 F.Supp.2d 201 (D.Conn. 2008), where the court held that medical services are only covered if
they are intended for diagnostic and evaluative purposes, not on-going monitoring of a medication regimen.
92
20 U.S.C. §1412(a)(5).
93
874 F.2d 1036 (5th Cir. 1989).
89
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regular classroom; the educational benefits available to the child in the regular classroom as
compared to those in a special education classroom; and the possible negative effects of the
inclusion of the child on other students in the regular classroom. 94 In A.G. v. Durtan,95 the Third
Circuit examined the effect of the child with a disability on other students, noting the student’s
frequent, loud vocalizations, combined with removal of shoes and socks, inappropriately clapping
and grinding her teeth, having difficulty toileting, and inappropriately touching other students.
Although these disruptions were not considered dispositive, the court considered them notable
and upheld the district court decision that the student could not be satisfactorily educated full time
in a regular classroom.
Stay Put
In enacting P.L. 94-142, the original version of IDEA, Congress provided grants to the states to
help pay for education for children with disabilities, and also delineated specific requirements the
states must follow to receive these federal funds. This public law contained a requirement that if
there is a dispute between the school and the parents of a child with a disability, the child “stays
put” in his or her current educational placement until the dispute is resolved using the due process
procedures set forth in the statute. The concept of “stay put” was placed in the statute to help
eliminate the then common discriminatory practice of expelling children with disabilities from
school. A revised “stay put” provision remains as law in the current version of IDEA. 96
In 1988, the question of whether there was an implied exception to the “stay put” rule was
presented to the Supreme Court in Honig v. Doe.97 Honig involved emotionally disturbed
children, one of whom had choked another student with sufficient force to leave abrasions on the
child’s neck and who had kicked out a window while he was being escorted to the principal’s
office. The other child in the Honig case had been involved in stealing, extorting money, and
making lewd comments. The school had sought expulsion, but the Supreme Court disagreed
finding that “Congress very much meant to strip schools of the unilateral authority they had
traditionally employed to exclude disabled students, particularly emotionally disturbed students,
from school.”98 However, the Court observed that this holding did “not leave educators
hamstrung.... Where a student poses an immediate threat to the safety of others, officials may
temporarily suspend him or her for up to 10 school days.... And in those cases in which the
parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10day respite gives school officials an opportunity to invoke the aid of the courts under section
1415(e)(2), which empowers courts to grant any appropriate relief.”99 This statement about the
school’s right to seek judicial relief has come to be know as a Honig injunction.
94
P. v. Newington Board of Education, 546 F.3d 111 (2d Cir. 2008); T.W. v. Unified School District No. 259, Wichita,
Kansas, 136 Fed. Appx. 122 (10th Cir. 2005); R.H. v. Plano Independent School District, 607 F.3d 1003 (5th Cir. 2010),
Cert. denied, 131 S.Ct. 1471, 179 L.Ed.2d 300, 2011 U.S. LEXIS 1330, 79 U.S.L.W. 3475 (U.S. Feb. 22, 2011).
Although Daniel R.R. was not cited, a similar standard was used in L.E. v. Ramsey Board of Education, 435 F.3d 384
(3d Cir. 2006), and B.S. v. Placentia-Yorba Linda Unified School District, 306 Fed. Appx. 397 (9th Cir. 2009).
95
374 Fed. Appx. 330 (3d Cir. 2010).
96
20 U.S.C. §1415(j). For a detailed discussion of “stay put,” see CRS Report RL32753, Individuals with Disabilities
Education Act (IDEA): Discipline Provisions in P.L. 108-446, by (name redacted).
97
484 U.S. 305 (1988).
98
484 U.S. 305, 323 (1988) (emphasis in the original).
99
Id. at 325-326.
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The Supreme Court’s interpretation of IDEA in Honig did not quell all concerns about discipline
and children with disabilities. In 1994, Congress amended IDEA’s “stay put” provision to give
schools the unilateral authority to remove a child with a disability to an interim alternative
educational setting if the child was determined to have brought a firearm to school. This provision
was expanded in the IDEA Amendments of 1997 to include weapons (not just firearms) and
drugs, and was further expanded in the 2004 reauthorization to include situations where a student
has inflicted serious bodily injury upon another person while at school.
Not all issues regarding the stay put provisions have involved disciplinary actions. Several courts
have addressed the issue of whether the stay put requirement applies when a child is transitioning
from Part C of IDEA to Part B. Part B of IDEA applies to school-aged children and requires the
provision of FAPE as delineated in an IEP; Part C of IDEA applies to infants and toddlers and
requires the provision of appropriate early intervention services as set forth in an individualized
family service plan (IFSP). Rejecting an opinion by the Office of Special Education Programs
(OSEP) of the Department of Education, 100 the Third Circuit in Pardini v. Allegheny Intermediate
Unit101 held that the stay put provision requires the child “to continue to receive conductive
education until the dispute over its appropriateness for inclusion in her IEP was resolved.”102
However, the Eleventh Circuit in D.P. v. School Board of Broward County103 disagreed, finding
that the children in that case were applying for initial admission to a public school program and
that they were not entitled to continue to receive services pursuant to their IFSPs.
Other issues regarding the stay put provision have involved mediation, private school placement,
a move from a resource room to a classroom, and the appeals process in the courts. Sammons v.
Polk County School Board104 raised the issue of whether a request for mediation invokes the stay
put provision. The Eleventh Circuit held that the IDEA regulations105 limited the application of
the stay put provision to the pendency of administrative or judicial proceedings and, therefore, it
was not applicable to a request for mediation. In L.M. v. Capistrano Unified School District,106 the
Ninth Circuit held that a child who had not had an implemented IEP, and had never been placed
in a public school, but was unilaterally placed in a private school by his parents, could not use the
stay put provision to continue private school placement. Similarly, although the IEP team
recommended that a child be placed in a private school in the fall, when the district contested the
IEP teams recommendation, the court in E.Y. v. Elysian Charter School of Hoboken held that the
placement where the child was to “stay put” was the placement for the preceding school year.107 A
child’s relocation from a resource room to an inclusion classroom was not found to constitute a
change in placement within the meaning of the stay put provision.108 In Joshua A. v. Rocklin
100
Letter to Klebanoff, 28 IDELR 478 (July 1, 1997). “Since the dispute in this case involved the child’s initial public
school placement, the district was not obligated to maintain the child’s private nursery school program pending
resolution of the dispute about his placement.”
101
420 F.3d 181 (3d Cir. 2005).
102
420 F.3d 181, 192 (3d Cir. 2005).
103
483 F.3d 725 (11th Cir. 2007), cert. den. 552 U.S. 1142 (2008).
104
165 Fed. Appx. 750 (11th Cir. 2006).
105
34 C.F.R. §300.518.
106
556 F.3d 900 (9th Cir. 2009), cert. den. 130 S.Ct. 90, 175 L.Ed.2d 28 (U.S. 2009).
107
384 Fed. Appx 58 (3d Cir. 2010).
108
In re: Educational Assignment of Joseph R. v. Mars Area School District, 318 Fed. Appx. 113 (3d Cir. 2009).
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Unified School District,109 the Ninth Circuit held that the stay put provision applied throughout
the appeals process in the courts.
An attempt to apply a novel application of the stay put provision failed in N.D. v. State of
Hawaii.110 Due to major fiscal concerns, the state of Hawaii decided to furlough teachers and shut
down the public schools for 17 Fridays in the 2009-2010 school year. Since this meant an
approximate reduction of 10% in instruction days, plaintiffs filed suit, alleging that this reduction
violated the stay put provision of IDEA. The Ninth Circuit found no violation, holding that the
stay put provision was not intended to cover system-wide changes in public schools that affect
children with and without disabilities. 111
Seclusion and Restraints
The use of seclusion and restraints has been the subject of increased congressional interest, and
on March 3, 2010, the House passed H.R. 4247, the “Keeping all Students Safe Act.” A similar
bill, S. 2860, was introduced in the Senate.112 IDEA provides that when the behavior of a child
with a disability impedes the child’s learning or the learning of others, the IEP team must consider
“the use of positive behavioral interventions and supports, and other strategies, to address that
behavior.”113 Nothing in IDEA specifically addresses the use of seclusion and restraints, and the
Department of Education has stated that “[w]hile IDEA emphasizes the use of positive behavioral
interventions and supports to address behavior that impedes learning, IDEA does not flatly
prohibit the use of mechanical restraints or other aversive behavioral techniques for children with
disabilities.”114 The Department also noted that state law may address whether restraints may be
used and, if restraints are allowed, the “critical inquiry is whether the use of such restraints or
techniques can be implemented consistent with the child’s IEP and the requirement that IEP
Teams consider the use of positive behavioral interventions and supports when the child’s
behavior impedes the child’s learning or that of others.”115
The Supreme Court has not specifically addressed the use of seclusion or restraints under IDEA;
however, in Honig v. Doe,116 the Court examined IDEA’s requirements for children who exhibited
violent or inappropriate behavior, and held that a suspension longer than ten days violated IDEA’s
“stay-put” provision.117 In Honig, the Court observed that this decision “does not leave educators
109
559 F.3d 1036 (9th Cir. 2009).
600 F.3d 1104 (9th Cir. 2010).
111
Apparently a plan has been agreed upon to prevent another 17 furlough days for the next school year by using state
hurricane relief funds and a $10 million interest-free line of credit from local banks. http://www.nasbe.org/index.php/
hlr-archive/995-headline-review-for-week-ending-52810.
112
For a more detailed discussion of the use of seclusion and restraints in public schools see CRS Report R40522, The
Use of Seclusion and Restraint in Public Schools: The Legal Issues, by (name redacted) and (name redacted).
113
20 U.S.C. §1414(d)(3)(B).
114
Letter to Anonymous, 50 IDELR 228 (OSEP March 17, 2008).
115
Id.
116
484 U.S. 305 (1988).
110
117
Generally, IDEA requires that if there is a dispute between the school and the parents of a child with a disability, the
child “stays put” in his or her current educational placement until the dispute is resolved using the due process
procedures set forth in the statute. 20 U.S.C. §1415(j). For a more detailed discussion of Honig and the “stay put”
provision see CRS Report RL32753, Individuals with Disabilities Education Act (IDEA): Discipline Provisions in P.L.
108-446, by (name redacted).
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hamstrung” and that educators may utilize “normal procedures” which “may include the use of
study carrels, timeouts, detention, or the restriction of privileges” as well as a ten-day
suspension. 118
Despite the lack of specific language in IDEA regarding the use of restraints and seclusion, cases
have been brought alleging that their use violates a child’s right to a free appropriate public
education. 119 Generally, courts have not found violations of IDEA where the seclusion or restraint
was deemed necessary to keep the child from hurting himself or others,120 or where the child was
progressing academically and the school had tailored the child’s IEP to address behavioral
issues.121 Courts have examined whether the administrative exhaustion requirements of IDEA
apply in situations involving the use of seclusion and restraint. In C.N. v. Willmar Public
Schools,122 the child’s IEP and behavior intervention plan allowed for the use of seclusion and
restraint procedures when the child was a danger to herself or others; however, the parents alleged
that these procedures were used improperly and excessively. The parents withdrew their daughter
from the school and placed her in another school. After her withdrawal, the parents requested a
due process hearing, challenging the adequacy of the educational services. The Eighth Circuit
affirmed the district court’s dismissal of the case, finding that if the parent was dissatisfied with
the child’s education, she must follow the IDEA due process procedures and file for a due process
hearing while the child was still in the school district against which the complaint was made.123
In contrast, IDEA has been used by parents in an attempt to enjoin enforcement of a New York
State regulation that banned the use of “aversive interventions.”124 Parents argued in part that
“some students’ IEP’s were being revised without parental consent or simply not revised for the
new school year, the effect of which was to deprive those students of aversive therapies.”125 The
Second Circuit vacated the district court’s injunction against the regulation and remanded for
further findings. On remand, the district court upheld the regulations finding that “the regulations
represent an informed, rational choice between two opposing schools of thought on the use of
aversives…. [T]he regulations are neither arbitrary nor capricious, and are consistent with the
purposes of the IDEA.”126
118
484 U.S. 305, 325 (1988).
For a report on restraint and seclusion in schools see National Disability Rights Network, “School is not Supposed
to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools,” (January 2009) http://www.napas.org/sr/
SR-Report.pdf. Rep. George Miller has asked the Government Accountability Office to investigate the use of restraint
and seclusion in schools. “House Education Committee Chairman asks GAO to Investigate Restraint, Seclusion,” 42
Education Daily 3 (January 28, 2009).
120
Melissa S. v. School District of Pittsburgh, 183 Fed. Appx. 184 (3d Cir. 2006).
121
CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th Cir. 2003), cert. den. 540 U.S. 984 (2003).
122
591 F.3d 624 (8th Cir. 2010).
123
See also Payne v. Pennisula School District, 598 F.3d 1123 (9th Cir. 2010), where the court dismissed IDEA claims
relating to the use of a seclusion room since IDEA’s administrative remedies were not exhausted. However, this
decision was vacated and a rehearing, en banc, was granted. Payne v. Peninsula Sch. Dist., 621 F.3d 1001 (9th Cir.
2010); Doe v. S&S Consolidated I.S.D., 149 F.Supp.2d 274 (E.D. Texas 2001), aff’d 309 F.3d 307 (5th Cir. 2002),
where the court, in a case that also presented constitutional issues, dismissed the IDEA claims relating to restraints
since IDEA’s administrative procedures had not been exhausted.
124
Alleyne v. New York State Education Department, 516 F.3d 96 (2d Cir. 2008). Aversive interventions were defined
as including “skin shocks, ‘contingent’ food programs, and physical restraints.” Id. at 98.
125
Id. at 99.
126
Alleyne v. New York State Education Department, 691 F.Supp2d 322 (N.D. N.Y. 2010).
119
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Retaliation and Harassment
Although harassment is not explicitly prohibited in IDEA, the Department of Education has stated
that disability harassment may result in a denial of FAPE.127 Several courts have held that
harassment may be so severe that the child with a disability is denied access to educational
benefits and that, therefore, IDEA is violated. 128 However, at least one court has found that the
claim of harassment must be tied to IDEA and should clearly state that the harassment has denied
the child FAPE.129 In addition, another court held that claims regarding retaliation are subject to
IDEA’s requirements for exhaustion of administrative remedies. 130
The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act131 may also
give rise to actions alleging retaliation for advocacy alleging violations of IDEA. Several circuits
have held that “attempting to protect the rights of special education students constitutes protected
activity under the Rehabilitation Act.”132
Due Process Procedures
Overview
Section 615 of IDEA provides detailed procedural safeguards for children with disabilities and
their parents.133 Procedural safeguards are provisions protecting the rights of parents and children
with disabilities regarding a free appropriate public education (FAPE) and include notice of
rights, mediation, resolution sessions, and due process procedures. Parents of a child with a
disability or a school may file a due process complaint.134 This complaint may only be presented
concerning violations that occurred not more than two years before the date the parent or public
agency knew or should have known about the alleged action.135 The 2004 reauthorization added
127
http://www.ed.gov/about/offices/list/ocr/docs/disabharassltr.html.
M.L. v. Federal Way School District, 394 F.3d 634 (9th Cir. 2005), cert. den. 545 U.S. 1128 (2005); Shore Regional
High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004).
129
Geoffrey Stringer v. St. James R-1 School District, 446 F.3d 799 (8th Cir. 2006).
128
130
M.T.V. v. DeLalb County School District, 446 F.3d 1153 (11th Cir. 2006). For a discussion of harassment and IDEA
see David Ellis Ferster, “Deliberately Different: Bullying as a Denial of a Free Appropriate Public Education under the
Individuals with Disabilities Education Act,” 43 Ga. L. Rev. 191 (Fall 2008); Brandy L. Wagstaff, “Disabling
Incentives: How A.W. v. Jersey City Public Schools has the Wrong ‘Idea’ for Deterring Disability Harassment in the
Public Schools,” 19 Geo. Mason U. Civil Rights L. J. 169 (Fall 2008).
131
These statutes are discussed in more detail in a subsequent section.
132
Reinhardt v. Albuquerque Public School Board of Education, 595 F.3d 1126, 1132 (10th Cir. 2010). See also, Barker
v. Riverside County Office of Education, 584 F.3d 821, 824-826 (9th Cir. 2009); Montanye v. Wissahickon School
District, 218 Fed.Appx. 126, 131 (3d Cir. 2007).
133
20 U.S.C. §1415. Generally, exhaustion of IDEA’s administrative procedures is required before a civil action is
brought. See e.g., Z.F. v. Ripon Unified School District, 365 Fed. Appx. 77 (9th Cir. 2010); Levine v. Greece Central
School District, 353 Fed. Appx. 461 (2d Cir. 2009), cert. denied, 130 S. Ct. 3411 (May 17, 2010).
134
For a discussion of the state due process systems see Perry A. Zirkel and Gina Scala, “Due Process Hearing Systems
Under the IDEA: A State-by-State Survey, “ 21 J. of Dis. Policy Studies 3 (2010), http://www.directionservice.org/
cadre/pdf/Due%20Process%20Hearing%20Systems.pdf.
135
20 U.S.C. §1415(b)(6). The third circuit has held that this statute of limitations does not apply retroactively. Steven
I. v. Central Bucks School District, 618 F.3d 411 (3d Cir. 2010), Cert. den., 131 S.Ct. 1507, 179 L.Ed.2d 307, 2011
(continued...)
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the provision allowing schools to also file complaints and there have been several instances where
a school district has used this authority.136 After an administrative decision, any party aggrieved
by the findings may file suit in district court but must do so within 90 days.137
Resolution Sessions and Mediation
In an attempt to resolve issues before the more confrontational due process proceedings, the 2004
reauthorization of IDEA added a requirement for a resolution session prior to a due process
hearing. This preliminary meeting involves the parents, the relevant members of the IEP team,
and a representative of the local educational agency who has decision making authority. The LEA
may not include its attorney unless the parent is accompanied by an attorney.138 Provisions
allowing for mediation of disputes under IDEA were added in the 1997 reauthorization139 and
retained in the current law.140 In addition, the 2004 IDEA reauthorization provided for judicial
enforcement of agreements reached through a resolution session141 or mediation. 142
Several judicial decisions have addressed issues regarding the resolution session. One court held
that the information disclosed during the resolution session is not confidential since the statute
does not specifically confer confidentiality and the resolution session discussions are not
settlement discussions.143 Another decision examined the inclusion of a school board attorney
when a parent did not have an attorney present, and found that the limitation on the presence of
an attorney is only for the preliminary meeting, not for the writing of a settlement decision. 144 As
noted previously, procedural violations in a resolution session do not violate FAPE if there was
not a substantial effect on the child’s educational opportunities.145
Several courts have examined the question of whether all settlement agreements are enforceable
in federal court or whether judicial enforcement is limited to agreements reached through dispute
resolution or mediation. Generally, the courts have held that the statutory language limits judicial
enforcement to those agreements reached through dispute resolution or mediation. 146
(...continued)
U.S. LEXIS 1405, 79 U.S.L.W. 3476 (U.S. Feb. 22, 2011).
136
See e.g., Bethlehem Area School District v. Diana Zhou, 2010 U.S. Dist. LEXIS 74404 (E.D. Pa. July 23, 2010),
where the district court ruled that the school district could proceed with a suit against a mother who allegedly tried to
increase legal fees against the district.
137
20 U.S.C. §1415(i). Courts have examined the 90-day statute of limitations, and found that it does not apply to
counterclaims. Ruben A. v. El Paso Independent School District, 2011 U.S. App. LEXIS 3906 (5th Cir. March 1, 2011);
Jonathan H. v. The Souderton Area School District, 562 F.3d 527 (3d Cir. 2009).
138
20 U.S.C. §1415(f)(1)(B).
139
P.L. 105-17, §615(e).
140
20 U.S.C. §1415(e).
141
20 U.S.C. §1415(f)(1)(B)(iii).
142
20 U.S.C. §1415(e)(2)(F)(iii).
143
Friendship Edison Public Charter School Chamberlain Campus v. Ebony Smith, 561 F.Supp.2d 74 (D.D.C. 2008).
144
Mr. and Mrs. S. v. Rochester Community Schools, 2006 U.S. Dist. LEXIS 71432 (W.D. Michigan October 2, 2006).
145
O.O. v. District of Columbia, 573 F.Supp.2d 41 (2008).
146
See e.g., 2006 U.S. Dist. LEXIS 53467 (D.D.C. Aug. 2, 2006).
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In Amy S. v. Danbury,147 the Sixth Circuit held that mediation agreements signed by the parents,
who were represented by counsel, precluded a claim. The parents had alleged that the school had
breached the mediation agreement since the agreed upon tutor could no longer transport the child
in his car. The court rejected this argument, noting that tutoring services were still available.
Similarly, in Ballard v. Philadelphia School District,148 the court rejected an argument by a parent
that a settlement agreement was invalid.
Review of Complaint’s Sufficiency
IDEA requires that a due process complaint include, in addition to other information, a
description of the nature and the problem, the relevant facts, and a proposed resolution of the
problem. 149 In Knight v. Washington School District,150 a district court addressed issues relating to
the review of the hearing officer’s determination that a due process complaint did not meet
IDEA’s pleading requirements. The district court quoted from the Senate report language which
stated in part that the determination of whether the due process complaint notice met the statutory
requirements “shall be made on the face of the complaint” and “[t]here should be no hearing or
appeal in regard to the hearing officer’s determination.”151 Although finding that it had no
jurisdiction to determine the adequacy of the complaint notice, the court noted that this was “an
unsatisfying outcome for Plaintiffs” and found it “troubling that a state official’s summary
dismissal of a complaint founded on federal law, for which federal law provides that applicable
standard, appears to be unreviewable in federal court.”152 The Eighth Circuit affirmed the district
court’s dismissal of the action but modified the dismissal to be without prejudice. 153
LEA Suits Against the State
Several courts of appeal have addressed the issue of whether an LEA may bring an action against
an SEA for its failure to comply with IDEA and found that IDEA does not allow such a private
right of action. In Traverse Bay Area Intermediate School District v. Michigan Department of
Education,154 the Sixth Circuit held that LEAs did not have statutory authority to challenge a state
agency’s alleged noncompliance with IDEA’s procedural safeguards. Noting that a right to bring
suit is created by the text of a statute, the court found that IDEA limited complaints to matters
relating to the identifications, evaluation, or educational placement of a child. Similarly, the Ninth
Circuit in Lake Washington School District No. 414 v. Washington State Office of Administrative
Hearings,155 held that an LEA has no private right of action under IDEA to litigate any issue other
than the issues raised by the parents on behalf of their child.
147
174 Fed. Appx. 896 (6th Cir. 2006).
273 Fed. Appx. 184 (3d Cir. 2008), cert. den. 129 S. Ct. 1317 (Feb. 23, 2009).
149
20 U.S.C. §1415(b)(7)(A)(ii).
150
2010 U.S. Dist. LEXIS 45433 (E.D. Mo. May 10, 2010).
151
S.Rept. 108-185, at 35, 108th Cong. (2003).
152
2010 U.S. Dist. LEXIS 45433 (E.D. Mo. May 10, 2010).
153
2011 U.S. App. LEXIS 8640 (April 27, 2011).
154
615 F.3d 622 (6th Cir. 2010).
155
2011 U.S. App. LEXIS 3464 (9th Cir. February 22, 2011).
148
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Parental Rights
In Winkelman v. Parma City School District,156 the Supreme Court examined the issue of whether
IDEA permits parents who are not attorneys to bring suit in court, either on their own behalf or as
representatives of their child. The Court held that such pro se suits were permitted for parents
suing with regard to their own rights. In an opinion written by Justice Kennedy, the Court
concluded that IDEA grants parents independent, enforceable rights that encompass a child’s
entitlement to a free appropriate public education, and that these rights are not limited to
procedural or reimbursement issues.
In arriving at this holding, Justice Kennedy observed that “a proper interpretation of the Act
requires a consideration of the entire statutory scheme.” The Court examined IDEA’s statutory
language, noting that one of the purposes of IDEA is “to ensure that the rights of children with
disabilities and parents of such children are protected.”157 This language was found to refer to
rights for both parents and children with disabilities. Similarly, the Court found that the
establishment of procedural rights was required “to ensure that the rights of children with
disabilities and parents of such children are protected.”158 These provisions were found to support
the finding that the parents of a child with a disability have “a particular and personal interest” in
the goals of IDEA and that “IDEA includes provisions conveying rights to parents as well as to
children.”
The rights that IDEA provides for parents were found to encompass not only procedural but also
substantive rights. Justice Kennedy observed, “IDEA does not differentiate, through isolated
references to various procedures and remedies, between the rights accorded to children and the
rights accorded to parents.” It was argued that granting these rights would increase the costs to
the states because parents may bring more lawsuits if they do not have the financial constraint of
paying for an attorney. However, the Court found that these concerns were not sufficient to
support an argument under the Constitution’s Spending Clause that IDEA failed to provide clear
notice before a new condition or obligation was placed on a recipient of funds. In addition, Justice
Kennedy observed that IDEA specifically allows courts to award attorneys’ fees to a prevailing
educational agency when a parent has brought an action for an “improper purpose, such as to
harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”159
The Supreme Court’s emphasis on a parent’s own rights has led courts to conclude that, although
a non-attorney parent cannot pursue claims on behalf of his child, he may amend the complaint to
assert his own claims.160 In addition, a parent was found to have “personal rights to enforce
FAPE” and, thus, survived an attempt to dismiss her claim.161 However, a parent may not use his
or her rights in order to circumvent an existing consent decree involving the same issues.162 In
addition, the mere assertion that the rights are those of the parents may not be sufficient. In
Woodruff v. Hamilton Township Public Schools,163 the Third Circuit found that although the
156
550 U.S. 516 (2007).
20 U.S.C. §1400(d)(1)(B).
158
20 U.S.C. §1415(a).
159
20 U.S.C. §1415(i)(3)(B)(i)(III).
160
KLA v. Windham Southeast Supervisory Union, 348 Fed. Appx. 604 (2d Cir. 2009).
161
Tereance D. v. School District of Philadelphia, 548 F.Supp.2d 162 (E.D. Pa. 2008).
162
Muse B. v. Upper Darby School Dist., 282 Fed. Appx. 986 (3d Cir. 2008).
163
305 Fed. Appx. 833 (3d Cir.2009).
157
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parents had filed an amended compliant purporting to assert their claims only, the claims asserted
were not personal to the parents and, therefore, the parents’ complaint was properly dismissed.
Parental rights, as determined by Winkelman, have been extended by some courts to cases brought
under Section 504 and the ADA as well as IDEA.164 However, not all courts have agreed with this
interpretation. In D.A. and M.A. v. Pleasantville School District,165 the court found that
Winkelman reflected the specific language and structure of IDEA with its emphasis on parental
involvement and was, therefore, not applicable to Section 504 and the ADA.
Other parental rights issues are not as directly tied to the Winkelman decision. The issue of
whether a parent could recover damages under IDEA for lost earnings and suffering incurred
while successfully pursuing her child’s IDEA claim was raised in Blanchard v. Morton School
District.166 The Ninth Circuit noted that money damages were not available for a child with a
disability, and that “IDEA does not contemplate the remedy Blanchard seeks and in that regard
creates no right enforceable under §1983.”167 The Second Circuit addressed the issue of the rights
of a noncustodial parent in Fuentes v. Board of Education of New York City.168 IDEA defines the
term “parent,”169 and the IDEA regulations expand upon the statutory language stating that a
parent is presumed to be the parent unless he or she does not have legal authority to make
educational decisions for the child.170 The Fuentes court emphasized the regulatory language and
found that the noncustodial biological parent did not have the legal authority to make educational
decisions.
Section 504 and the Americans with Disabilities Act
(ADA)
IDEA is not the only federal statute to address the education of children with disabilities, although
it is the most detailed in its provisions. Section 504 of the Rehabilitation Act and the Americans
with Disabilities Act (ADA) address the rights of individuals with disabilities to education.
Although there is overlap, particularly with Section 504 and the ADA, each statute plays a
significant part in the education of individuals with disabilities. IDEA, enacted in 1975, is both a
grants statute and civil rights statute and requires programs for children with disabilities that are
in addition to those available to children without disabilities. Section 504, enacted in 1973, and
the ADA, enacted in 1990, are civil rights statutes that prohibit discrimination against individuals
with disabilities. Their coverage is similar, and the ADA was modeled on Section 504 and its
regulations; however, Section 504 only applies to entities that receive federal financial assistance,
164
Blanchard v. Morton School District, 509 F.3d 934 (9th Cir. 2007), cert den. 552 U.S. 1231 (2008); K.F. v. Frances
Howell R-III School District, 2008 U.S. Dist. LEXIS 20700 (E.D. Missouri March 17, 2008).
165
2009 U.S. Dist. LEXIS 30104 (D.N.J. April 6, 2009).
166
509 F.3d 934 (9th Cir. 2007), cert. den., 552 U.S. 1231 (2008).
167
Id. at 937.
168
540 F.3d 145 (2d Cir. 2008), cert den. 129 S. Ct. 1357 (Feb. 23, 2009). See also Cumberland Regional High School
District Board of Education v. Freehold Regional High School District Board of Education, 293 Fed. Appx. 900 (3d
Cir. 2008), where two school districts were required to share the costs of providing FAPE to a child of divorced parents
who shared joint legal and physical custody.
169
20 U.S.C. §1401(23).
170
34 C.F.R. §300.30(b).
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while the ADA has broader coverage, not tied to the receipt of federal funds. As noted in D.A. v.
Houston Independent School District,171 “[e]xactly what remedies remain under 504 and the ADA
for children whose parents are dissatisfied with the school’s determinations under IDEA are
unclear.”172 Although a detailed analysis of the educational coverage of these statutes is beyond
the scope of this report,173 it should be noted that several courts have examined issues presented
by the interaction of the statutes, noting differences in coverage.174
Burden of Proof
IDEA contains detailed due process requirements to ensure the provision of FAPE. These include
the opportunity for an impartial due process hearing. 175 However, the statute contains no specific
provision relating to which party has the burden of proof in a due process hearing, and the courts
of appeal, prior to the Supreme Court’s decision in Schaffer v. Weast,176 were split in their
interpretations of who bore the burden of proof.
The Supreme Court in the 2005 case of Schaffer v. Weast177 held that the burden of proof
regarding an allegedly inadequate IEP in an IDEA due process hearing rests with the party
seeking the relief. The Supreme Court, in an opinion by Justice O’Connor, first observed that
“absent some reason to believe that Congress intended otherwise, ... we will conclude that the
burden of persuasion lies where it usually falls, upon the party seeking relief.”178 Justice
O’Connor then examined, and rejected, various reasons advanced to support the argument that the
burden of proof should be on the school system. The Supreme Court noted that the most plausible
argument advanced by the parents was that, in the interest of fairness, the burden of proof should
not be placed on a party when the facts are “peculiarly within the knowledge of his adversary.”179
School districts were seen as having a “natural advantage” regarding the information, but Justice
O’Connor did not find this to be determinative because “Congress addressed this when it obliged
171
629 F.3d 450 (5th Cir. 2010).
Id. at 460.
173
For a more detailed discussion see CRS Report R40123, Education of Individuals with Disabilities: The Individuals
with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act
(ADA), by (name redacted).
174
See for example, Andrew M. v. Delaware County Office of Mental Health and Mental Retardation, 490 F.3d 337
(3d Cir. 2007), where the court found that although a violation of IDEA Part B claim is generally also a violation of
Section 504, a violation of IDEA Part C, which provides for services for infants and toddlers with disabilities, is not
also a violation of Section 504. See also Mark H. ex rel. Michelle H. and Natalie H. v. Lemahieu, 513 F.3d 922 (9th Cir.
2008). But see E.H .and K.H. v. Board of Education of the Shenendehowa Central School District, 361 Fed. Appx. 156
(2d Cir. 2009), where the court stated that a violation of IDEA is insufficient by itself to support a claim of
discrimination under the ADA or section 504. Similarly, in Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010), the
Ninth Circuit held that “simply establishing a violation of the right to a FAPE under IDEA is not sufficient to prevail in
a §504 claim for damages.”
175
20 U.S.C. §1415(f).
172
176
546 U.S. 49 (2005). Chief Justice Roberts took no part in the decision. For a more detailed discussion of Weast, see
CRS Report RS22353, The Individuals with Disabilities Education Act (IDEA): Schaffer v. Weast Determines Party
Seeking Relief Bears the Burden of Proof, by (name redacted).
177
Id.
178
Id. at 57-58.
179
Id. at 60, citing United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256, n.5 (1957).
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schools to safeguard the procedural rights of parents and to share information with them.”180 The
Court noted that IDEA provides parents with the right to review records; to have an independent
educational evaluation; to have details about options considered by the school district as well as
disclosure of evaluations and recommendations; and to receive attorneys’ fees in the discretion of
a court if they prevail. Justice O’Connor concluded that “[t]hese protections ensure that the
school bears no unique informational advantage.”181
Remedies
Private Schools
Issues concerning what services are required for children with disabilities placed in private
schools, and who is to pay for these services, have been a continuing source of controversy under
IDEA. 182 Under current law, a child with a disability may be placed in a private school by the
local educational agency (LEA) or state educational agency (SEA) as a means of fulfilling the
FAPE requirement for the child. In this situation, the full cost is paid for by the LEA or the SEA.
A child with a disability may also be unilaterally placed in a private school by his or her parents.
In this situation, the cost of the private school placement is not paid by the LEA unless a hearing
officer or a court makes certain findings. However, IDEA does require some services for children
in private schools, even if they are unilaterally placed there by their parents.183 IDEA, as
amended, states in part,
(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT.—If the parents of a
child with a disability, who previously received special education and related services under
the authority of a public agency, enroll the child in a private elementary school or secondary
school without the consent of or referral by the public agency, a court or a hearing officer
may require the agency to reimburse the parents for the cost of the enrollment if the court or
hearing officer finds that the agency had not made a free appropriate public education
available to the child in a timely manner prior to that enrollment.184
The current statutory provisions regarding private schools are the result of several major
amendments, and the majority of the Supreme Court decisions on private schools were decided
prior to the statutory changes. 185 However, two recent Supreme Court cases have addressed the
question of whether IDEA allows for tuition reimbursement for parents who placed their child in
a private school without ever having received special education from the public school. In the
180
Id.
Id. at 61.
182
For a discussion of these issues under current law, see CRS Report RS22044, Individuals with Disabilities
Education Act (IDEA): Services in Private Schools under P.L. 108-446, by (name redacted), and CRS Report
RL33368, The Individuals with Disabilities Education Act (IDEA): Parentally Placed Children in Private Schools, by
(name redacted) and (name redacted).
183
20 U.S.C. §1412(a)(10).
184
20 U.S.C. § 1412(a)(10)(C)(ii).
181
185
For a discussion of all the Supreme Court decisions on IDEA and private schools see CRS Report RL33444, The
Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions, by (name redacted) and (name red
acted).
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2007 decision Board of Education of the City School District of the City of New York v. Tom F.,186
the Court, dividing 4-4, allowed an appeals court ruling on private school reimbursement to stand.
The court of appeals had held that parents of a child with a disability are entitled to private school
reimbursement even though the student had never received special education services from the
school district. The Court’s per curiam decision did not set a precedent for lower courts, and
therefore the issue about whether reimbursement for private school tuition may be made when the
child has not received public special education services remained unsettled. On October 15, 2007,
the Supreme Court denied certiorari in another case presenting the same issue.187 However, on
June 22, 2009, the Supreme Court held in Forest Grove School District v. T.A.188 that IDEA
authorized reimbursement for private special-education services when a public school fails to
provide a FAPE and the private-school placement is appropriate, regardless of whether the child
previously received special-education services through the public school.
Recent lower court decisions have held that if the child is making some educational progress and
the public school has provided an IEP calculated to provide for continued progress, the
requirements of FAPE are met and the child is not entitled to a private school placement.189 For
example, in M.H. and J.H. v. Monroe-Woodbury Central School District,190 the court found that
the child’s IEP was adequate and, therefore, the parents were not entitled to tuition reimbursement
for a private school placement. These same standards have been applied when parents seek to
place their child in a private school different from the private school where the school district has
placed the child. 191 In addition, if a private school does not adequately address the child’s
educational needs, the court may not require private school tuition reimbursement.192 However,
the mere fact that the private school contains a large percentage of children with disabilities does
not make it an inappropriate placement despite IDEA’s preference for educating children with
disabilities in the least restrictive environment. 193
Courts have held that reimbursement for private school tuition is barred if parents arrange for
private school educational services without notifying the LEA of their problems with their child’s
IDEA services.194 Reimbursement is also barred if the parents act unreasonably in their relations
186
552 U.S. 1 (2007).
Board of Education of the Hyde Park Central School District v. Frank G., 459 F.3d 356 (2d Cir. 2006), cert. den.
522 U.S. 985 (2007).
188
557 U.S. __ ,129 S.Ct. 2484, 174 L.Ed.2d 168 (2009).
189
Thompson R2-J School District v. Luke P., 540 F.3d 1143 (10th Cir. 2008), cert. den. 557 U.S. __, 129 S.Ct. 1356,
176 L.Ed. 590 (2009); K.J. v Fairfax County School Board, 39 Fed. Appx. 921 (4th Cir. 2010).
190
250 Fed. Appx. 428 (2d Cir. 2007). See also, N.M. v. The School District of Philadelphia, 394 Fed. Appx. 920 (3d
Cir.2010).
191
M.H. and J.H. v. Monroe-Woodbury Central School District, 296 Fed. Appx. 126 (2d Cir. 2008), cert. den. 557 U.S.
__, 129 S.Ct. 1584, 173 L.Ed. 2d 676 (2009).
192
Lauren P. v. Wissahickeon School District, 310 Fed. Appx. 552 (3d Cir. Feb. 12, 2009). Similarly, if the private
placement is determined to be for medical, not educational, reasons, reimbursement is not required. Courtney v. School
District of Philadelphia, 575 F.3d 235 (3d Cir. 2009). But see C.B. v. Garden Grove Unified School District, 635 F.3d
1155 (9th Cir. 2011), where the court held that full reimbursement for private school placement may be granted even if
the placement does not satisfy all of the child’s educational needs.
193
C.B. v. Special School District No. 1, 2011 U.S. App. LEXIS 8176 (April 21, 2011).
187
194
See Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006), cert. den. 552 U.S. 985 (2007); Carmel Central
School District v. V.P., 192 Fed. Appx. 62 (2d Cir. 2006); K.J. v Fairfax County School Board, 39 Fed. Appx. 921 (4th
Cir. 2010).
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with the school195 or if the allegation concerns procedural violations that do rise to a level of
substantive harm.196 The parents are not barred from private school tuition reimbursement,
however, if the child has not previously received special education services. 197
Compensatory Education
If a school district is found to have deprived a child with a disability of FAPE, the child may be
entitled to private school reimbursement, as was discussed previously, or the child may be entitled
to receive compensatory education. Essentially, compensatory education is the award of
prospective educational services designed to compensate for a previous inadequate program, and
is derived from the 1985 Supreme Court’s private school ruling in School Committee of the Town
of Burlington v. Department of Education of Massachusetts.198 In Burlington, the Court held that
parents who place a child in a private school when the public school program violates FAPE may
obtain reimbursement for the private school tuition. Lower courts have used this holding to find
that if financial reimbursement is allowed, compensatory services must also be allowed. 199
However, allowing such a remedy is not without some ambiguity. Courts have differed in how the
award of compensatory education is to be made. Some courts have found that the child is entitled
to compensatory education for the same amount of time that appropriate services were
withheld. 200 Other courts have adopted an “equitable focus” which rejects a day for day approach
and emphasizes the need of the student to be appropriately educated under IDEA.201 In addition,
the IEP applicable to children receiving compensatory education may also need to provide more
services than might be required in a general IEP since the IEP for children receiving a
compensatory education must be created to compensate for the denial of appropriate education. 202
Section 1983 Actions
Section 1983 authorizes suits against state officials and others acting “under color” of state law
for deprivation of rights derived from the “Constitution and laws” of the United States.203
Generally, courts have found that the IDEA procedural remedies must be exhausted prior to the
195
20 U.S.C. §1412(a)(10)(C)(iii)(III). See C.G. and B.S. v. Five Town Community School District, 513 F.3d 279 (1st
Cir. 2008), where the court held that the parents’ “single-minded refusal to consider any placement other than a
residential one” was unreasonable; C.H. v. Cape Henlopen School District, 606 F.3d 59 (3d Cir. 2010), where the court
held that the parents’ disregard of their obligation to cooperate and assist in the formation of an IEP was unreasonable.
196
C.H. v. Cape Henlopen School District, 606 F.3d 59 (3d Cir. 2010); Anello v. Indian River School District, 355 Fed.
Appx. 594 (3d Cir. 2009).
197
Carmel Central School District v. V.P., 192 Fed. Appx. 62 (2d Cir. 2006); Frank G. v. Board of Education, 459 F.3d
356 (2d Cir. 2006) cert. den. 552 U.S. 985 (2007); M.M. v. School Board of Miami-Dade County, Florida, 437 F.3d
1085 (11th Cir. 2006).
198
471 U.S. 359 (1985).
199
See e.g., Ferren C. v. School District of Philadelphia, 612 F.3d 712 (3d Cir. 2010); Reid v. District of Columbia, 401
F.3d 516 (U.S. App. D.C. 2005); Draper v. Atlanta Independent School System, 518 F.3d 1275 (11th Cir. 2008).
200
M.C. v. Cent. Regional School District, 81 F.3d 389 (3d Cir. 1996).
201
Reid v. District of Columbia, 401 F.3d 516 (U.S. App. D.C. 2005); Neena S. v. School District of Philadelphia,
2008 U.S.Dist. LEXIS 102841 (Dec. 19, 2008).
202
Reid v. District of Columbia, 401 F.3d 516 (U.S. App. D.C. 2005).
203
42 U.S.C. §1983.
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filing of a §1983 action. 204 The application of section 1983 with its damages for pain and
suffering to IDEA is unclear. Some courts have held that IDEA’s statutory scheme does not allow
for damages. 205 However, other courts have allowed damages. 206
Attorneys’ Fees
Background
Although the original version of IDEA, P.L. 94-142, contained no specific provision for
attorneys’ fees, prevailing parties used section 505 of the Rehabilitation Act of 1973,207 or section
1988 of the Civil Rights Attorneys’ Fees Award Act,208 to seek fees. However, the Supreme Court
in Smith v. Robinson209 held that the only remedies for prevailing parties under IDEA were those
contained in that statute. The statute was described as “a comprehensive scheme set up by
Congress to aid the States in complying with their constitutional obligations to provide public
education for handicapped children.”210 The Court further noted that allowing the use of other
statutes to provide for attorneys’ fees would “be inconsistent with Congress’ carefully tailored
scheme.”211
The Court’s decision in Smith v. Robinson was controversial. In response, Congress in 1986
enacted the Handicapped Children’s Protection Act, which provided for attorneys’ fees under
IDEA. 212 These provisions were amended in 1997. The P.L. 105-17 amendments allowed the
reduction of attorneys’ fees if the attorney representing the parents did not provide the LEA with
timely and specific information about the child and the basis of the dispute, and specifically
excluded the payment of attorneys’ fees for most individualized education plan (IEP) meetings.
The 2004 IDEA reauthorization, P.L. 108-446, kept many of the previous provisions on attorneys’
fees but also made several additions. These include allowing attorneys’ fees for the state
educational agency (SEA) or the local educational agency (LEA) against the parent or the
parent’s attorney in certain situations.213
The ADA allows a court, in its discretion, to award attorneys’ fees to a prevailing party. In
Buckhannon Board and Care Home, Inc., v. West Virginia Department of Human Resources,214 the
204
Doe v. Todd County School District, 625 F.3d 459 (8th Cir. Nov. 12, 2010).
205
See Padilla ex rel. Padilla v. School District No. 1, 233 F.3d 1268 (10th Cir. 2000); A.W. v. Jersey City Public
Schools, 486 F.3d 791 (3d Cir. 2007); J.S. v. Isle of Wight County School Board, 402 F.3d 468 (4th Cir. 2005).
206
D.D. ex rel. V.D. v. N.Y. City Board of Education, 465 F.3d 503 (2d Cir. 2006). For a more detailed discussion of
IDEA and Section 1983 see Suzanne Solomon, “The Intersection of 42 U.S.C. §1983 and the Individuals with
Disabilities Education Act,” 76 Fordham L. Rev. 3065 (May 2008). See also Mark H. v. Lemahieu, 513 F.3d 922 (9th
Cir. 2008), where the court found that parents could seek monetary damages under section 504 for a violation of FAPE.
207
29 U.S.C. §794a.
208
42 U.S.C. §1988.
209
468 U.S. 992 (1984).
210
Id. at 1009.
211
Id. at 1012.
212
P.L. 99-372.
213
20 U.S.C. §1415(i)(3). For a discussion of P.L. 108-446 and attorneys’ fees, see CRS Report RS22055, The
Individuals with Disabilities Education Act (IDEA): Attorneys’ Fees Provisions in P.L. 108-446, by (name redacted).
214
532 U.S. 598 (2001).
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Supreme Court addressed the “catalyst theory” of attorneys’ fees which posits that a plaintiff is a
prevailing party if the lawsuit brings about a voluntary change in the defendant’s conduct. The
Court rejected this theory finding that attorneys’ fees are only available where there is a judicially
sanctioned change in the legal relationship of the parties.215
Lower Court Decisions
Courts have consistently applied Buckhannon to the attorneys’ fees provision in IDEA. In several
cases, attorneys’ fees have been given to the party who prevailed in administrative proceedings,
provided that result was legally enforceable, 216 although attorneys’ fees have not been awarded
for resolution sessions.217 Additionally, attorneys’ fees have been given to the prevailing party in
judicial proceedings, even if the party prevails because of a dismissal on the merits.218 Attorney
fees have also been awarded without a finding of a denial of FAPE when an LEA has
misclassified the child’s disability. 219 However, where a child has not yet been determined to be a
child with a disability under IDEA, attorneys’ fees have not been awarded, even where the fees
were sought for a failure to refer for assessments to determine eligibility and failure to identify
the child as a child with a disability. 220
Courts will only award attorneys’ fees for relief obtained through a settlement agreement if that
agreement received judicial approval. 221 Attorneys’ fees will not be awarded for voluntary
settlements222 or purely private settlement agreements223 that are not judicially sanctioned or do
not require judicial approval to take effect. Also, in Drennan v. Pulaski County Special School
District,224 a party was not awarded attorneys’ fees when it had not performed certain duties that
were ordered by the court as a precondition of receiving relief from the school district. Attorneys’
fees also will not be awarded to parties for representation by consultants225 or by parent-
215
For more information about the Buckhannon decision, see CRS Report 98-921, The Americans with Disabilities Act
(ADA): Statutory Language and Recent Issues, by (name redacted).
216
See P.N. and M.W. v. Clementon Board of Education, 442 F.3d 848 (3d Cir. 2006), cert. den., 549 U.S. 881 (2006);
A.R. ex. rel. R.V. et. al. v. New York City Department of Education, 407 F.3d 65 (2d Cir. 2005); Department of
Education, State of Hawaii v. Leialoha J. ex. rel. Presh’es J., 2008 U.S. Dist. LEXIS 87854 (D. Hawaii Oct. 29, 2008).
217
See El Paso Independent School District v. Richard R., 591 F.3d 417 (5th Cir. 2009), cert. den., 130 S. Ct. 3467
(2010), where the Fifth Circuit overruled a district court’s decision allowing attorneys’ fees for a resolution session.
218
District of Columbia v. Jeppsen and M.J., 514 F.3d 1287 (D.C. Cir. 2008).
219
Weissburg v. Lancaster School District, 591 F.3d. 1255 (9th Cir. 2010).
220
T.B. v. v. Bryan Independent School District, 628 F.3d 240 (5th Cir. 2010). See also, D.S. v. Neptune Township
Board of Education, 264 Fed. Appx. (3d Cir. 2008).
221
Bassman v. Chicago Public Schools, District #299, 2008 U.S. Dist. LEXIS 87469 (N.D. Ill. Oct. 29, 2008).
222
Bingham et. al. v. New Berlin School District, 550 F.3d 601 (7th Cir. 2008).
223
See Smith v. Fitchburg Public Schools, 401 F.3d 16 (1st Cir. 2005); P.N. ex. rel. T.N. v. Seattle School District, No.
1, 474 F.3d 1165 (9th Cir. 2007); Salley v. Trenton Board of Education, 156 Fed. Appx. 470 (3d Cir. 2005); Mr. L. ex.
rel. M. v. Sloan and Norwalk Board of Education, 449 F.3d 405 (2d Cir. 2006); Evans v. Grossmont Union High
School District et. al., 197 Fed. Appx. 648 (9th Cir. 2006); Bassman v. Chicago Public Schools, District #299, 2008
U.S. Dist. LEXIS 87469 (N.D. Ill. Oct. 29, 2008).
224
458 F.3d 755 (8th Cir. 2006).
225
A.H. v. South Orange Maplewood Board of Education, 153 Fed. Appx. 863 (3d Cir. 2005), cert. den. 549 U.S. 945
(2006).
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attorneys.226 However, attorneys’ fees may be awarded to relatives other than parents, such as a
grandparent.227
Courts have great discretion when deciding the amount of attorneys’ fees to award to a prevailing
party.228 Based on the degree of success that is achieved by a party, a court may decide to award
less than the full amount of attorneys’ fees requested by the party.229 Courts have denied or
reduced the party’s attorneys’ fees because the party rejected a settlement offer from the school
district but accomplished little more in court than was offered in the proposed settlement.230
However, the Fifth Circuit has held that refusal to attend a meeting when a proposed settlement
has not been offered does not mean that the award should be reduced because the plaintiff
unreasonably protracted the proceedings.231 Additionally, Congress first imposed a fee cap on
IDEA cases brought in the District of Columbia in FY1999 through a provision in the annual
District of Columbia Appropriations Act, and a cap has been part of every subsequent D.C.
appropriations act since that time. 232
The 2004 IDEA reauthorization added a provision stating that in “any action or proceeding
brought under this section, the court, in its discretion, may award reasonable attorneys’ fees ... to
a prevailing party who is a State educational agency or local educational agency against the
attorney of a parent who files a complaint or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against the attorney of a parent who continued to litigate
226
See, for example, S.N. ex. rel. v. Pittsford Central School District, 448 F.3d 601 (2d Cir. 2006); Whitney Ford ex.
rel. v. Long Beach Unified School District, 461 F.3d 1087 (9th Cir. 2006); Van Duyn v. Baker School District 5J, 502
F.3d 811 (9th Cir. 2007).
227
Weissburg v. Lancaster School District, 591 F.3d. 1255 (9th Cir. 2010).
228
See Damian J. v. The School District of Philadelphia, 358 Fed. Appx. 333 (3d Cir. 2009), where the court of appeals
declined to overrule the district court’s award of attorneys’ fees, finding that the determination of the fees was made
following “a thoroughly reasoned and careful analysis.”
229
See, for example, Damian J. v. The School District of Philadelphia, 358 Fed. Appx 333 (3rd Cir. 2009); Crawford et.
al. v. San Dieguito Union School District, 202 Fed. Appx. 185 (9th Cir. 2006); A.S. ex. rel. V.S. and G.S. v. Colts Neck
Board of Education, 190 Fed. Appx. 140 (3d Cir. 2006); Aguirre v. Los Angeles Unified School District, 461 F.3d
1114 (9th Cir. 2006); Starkey ex rel. Starkey v. Somers Cent. Sch. Dist., 2008 U.S. Dist. LEXIS 104064 (S.D.N.Y. Dec.
23, 2008).
230
See Gary G. v. El Paso Independent School District, 632 F.3d 201 (5th Cir. 2011) (attorneys’ fees denied after
rejection of a settlement agreement), El Paso Independent School District v. Richard R., 591 F.3d 417 (5th Cir. 2009),
cert. den., 130 S. Ct. 3467 (2010)(attorneys’ fees denied after rejection of a settlement agreement that included all the
relief requested); V.G. by J.G. v. Auburn Enlarged Cent. Sch. Dist., 2008 U.S. Dist. LEXIS 99743 (N.D.N.Y. 2008),
aff’d 349 Fed. Appx. 582 (2d Cir. 2009)(reduction of attorneys’ fees after rejection of a settlement offer). However, a
school district does not shield itself from attorneys’ fees simply by making a settlement offer, and a party may still
receive attorneys’ fees if it is “substantially justified” in rejecting the settlement offer. See Hawkins v. Berkeley
Unified Sch. Dist., 2008 U.S. Dist. LEXIS 94673 (N.D. Cal. Nov. 20, 2008). Additionally, evidence of a settlement
agreement that was offered following confidential mediation but referencing the mediation session cannot be used to
show that the party rejected a school district’s settlement offer. See J.D. v. Kanawha County Board of Education, 571
F.3d 381 (4th Cir. 2009), cert den., 131 S.Ct. 107 (2010).
231
Ector County Independent School District, 2011 U.S. App. LEXIS 6380 (5th Cir. March 28, 2011).
232
See, for example, Kaseman v. District of Columbia, 444 F.3d 637 (D.C. Cir. 2006); Pullins v. Community Services
for Autistic Adults and Children, 171 Fed. Appx. 867 (D.C. Cir. 2005); Whatley v. District of Columbia, 447 F.3d 814
(D.C. Cir. 2006); Jester v. Government of the District of Columbia, 474 F.3d 820 (D.C. Cir. 2007); Blackman et. al. v.
District of Columbia et. al., 456 F.3d 167 (D.C. Cir. 2006). For examples of the appropriation provisions that cap IDEA
fees in the District of Columbia, see 2006 District of Columbia Appropriations Act §122(a)(1), P.L. 109-115;
Consolidated Appropriations Act, 2008, P.L. 110-161, § 819. This cap has been held not to be applicable to a class
action as a whole but rather limits fees for individual students in the class. Blackman et al. v. District of Columbia, 633
F.3d 1088 (D.C. Cir. 2011).
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after the litigation clearly became frivolous, unreasonable, or without foundation.... ” 233 In El
Paso Independent School District v. Berry,234 the Fifth Circuit found that the award of attorneys’
fees to the LEA was permissible against a lawyer who refused to accept all offered relief, and
used stonewalling tactics to refuse to allow the district to evaluate the student. However, the sixth
circuit found that this fee-shifting provision did not apply to private schools.235 The mere fact that
the parents do not prevail in court does not make the parents’ action frivolous.236 The Ninth
Circuit noted that “[l]awyers would be improperly discouraged from taking on potentially
meritorious IDEA cases if they risked being saddled with a six-figure judgment for bringing a suit
where they have a plausible, though ultimately unsuccessful, argument….”237
Several of the cases discussing the fee-shifting provision have examined whether the LEA was
the prevailing party. In El Paso Independent School District v. Richard R,238 the Fifth Circuit held
that although the school district prevailed in successfully arguing for a reduction in the attorneys’
fees awarded to the plaintiff, the school district did not prevail on the educational issues and thus
was not entitled to attorneys’ fees. Similarly, in District of Columbia v. Straus,239 the D.C. Court
of Appeals refused to award fees for the school district because the school district was not found
to be a prevailing party. The hearing officer had dismissed the case after the school district had
agreed to pay for the requested evaluation, and the court noted that “[i]f the District were
considered a prevailing party under these circumstances, then DCPS could ignore its legal
obligations until parents sue, voluntarily comply quickly, file for and receive a dismissal with
prejudice for mootness, and then recover attorney’s fees from the parents’ lawyers.”240
Expert Witness Fees
Although there is no specific provision allowing a court to award to expert witness fees to
prevailing parents, the language regarding attorneys’ fees has been interpreted by some lower
courts to allow such an award. IDEA’s statutory language states in relevant part: “in any action or
proceeding brought under this section, the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs—(I) to a prevailing party who is the parent of a child with a
disability.”241
The parents in Arlington Central School District v. Murphy242 argued that the language on costs
encompassed the payment of expert witness fees. To support this argument, they pointed to the
legislative history of the Handicapped Children’s Protection Act,243 which stated that “[t]he
233
20 U.S.C. §1415(i)(3)(B)(i)(II).
400 Fed. Appx. 947 (5th Cir. 2010).
235
Children’s Center for Developmental Enrichment v. Machle, 612 F.3d 518 (6th Cir. 2010).
236
R.P. v. Prescott Unified School District, 631 F.3d 1117 (9th Cir. 2011).
237
Id. at 135. The Ninth Circuit also observed that the district court had erred in holding the parents liable for bringing
a suit for an improper purpose because they brought the suit in anger. Anger was not a motive listed in IDEA, and the
court noted that anger may well be a legitimate reaction to a belief that rights have been violated.
238
591 F.3d 417 (5th Cir. 2009), cert. den., 130 S. Ct. 3467 (2010).
239
590 F.3d 898 (DC Cir. 2010).
240
Id. at 902.
241
20 U.S.C. §1415(i)(3)(B).
242
548 U.S. 291 (2006).
243
P.L. 99-372.
234
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conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses
and fees of expert witnesses.”244 The Supreme Court, in a decision written by Justice Alito, held
that IDEA does not authorize prevailing parents to recover fees they have paid to experts. The
majority opinion first observed that the holding was “guided by the fact that Congress enacted the
IDEA pursuant to the Spending Clause.”245 This was seen as significant because if Congress
attaches conditions to a state’s acceptance of funds, the conditions must be unambiguous and
provide clear notice. The majority concluded that IDEA’s statutory language did not provide this
clear notice and that the legislative history was unconvincing and “simply not enough” under
these circumstances. 246
H.R. 1208 and S. 613 were introduced in the 112th Congress to amend IDEA to include the fees of
expert witnesses. They specifically provided that “the term ‘attorneys’ fees’ shall include the fees
of expert witnesses, including the reasonable costs of any test or evaluation necessary for the
preparation of the parent or guardian’s case in the action or proceeding.”
Systemic Compliance Complaints
IDEA has two separate means of resolving disputes: (1) the impartial due process procedures247
and (2) the state complaint resolution system, 248 and the state complaint regulations specifically
allow complaints by “any organization or individual.”249 In addition, the Department of Education
is responsible for monitoring implementation of IDEA. 250 At least one court of appeals decision
has addressed a systemic complaint under IDEA’s due process procedures.251 In addition, the
Ninth Circuit in Lake Washington School District No. 414 v. Washington State Office of
Administrative Hearings,252rejected an LEA’s suit against the SEA finding that it had no private
right of action to challenge a state’s “systematic violation of the IDEA.”253
244
H.Rept. 99-687, at 5.
548 U.S. 291, 295 (2006).
246
548 U.S. 291, 303 (2006). For a more detailed discussion, see CRS Report RS22465, The Individuals with
Disabilities Education Act (IDEA): The Supreme Court Denies Expert Fees in Arlington Central School District v.
Murphy, by (name redacted).
247
20 U.S.C. §1415.
248
34 C.F.R. §§ 300.151-300.153.
249
34 C.F.R. §300.153(a). In Reinhardt v. Alburquerque Public Schools Board of Education, 595 F.3d 1126 (10th Cir.
2010), the court addressed a retaliation claim by a speech-language pathologist who had filed an IDEA complaint with
the state, finding that the teachers advocacy on behalf of students with disabilities was protected under Section 504 of
the Rehabilitation Act, 29 U.S.C. §794.
250
20 U.S.C. §1416.
251
Keene v. Zelman, 337 Fed. Appx. 553 (6th Cir. 2009). Although the issue in Keene involved the award of attorneys’
fees, the fees were awarded for deficiencies in the procedures for litigating due process notices. See also N.D. v. State
of Hawaii, 600 F.3d 1104 (9th Cir. 2010), where the court found no violation of the stay put provision by Hawaii’s
decision to shut down the public school for 17 Fridays in the 2009-2010 school year. The court held that the stay put
provision was not intended to cover system-wide changes in public schools that affect children with and without
disabilities.
252
634 F.3d 1065 (9th Cir. 2011).
253
Id.
245
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In 1975, Congress established a protection and advocacy system (P & A’s) to advocate and protect
the rights of individuals with developmental disabilities.254 Many of the court cases filed by P &
A’s are class action lawsuits aimed at systemic violations of the rights of an individual and a
number of these cases have involved special education students.255 These cases have often
involved issues concerning the P & A’s access to student records. 256
Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
254
The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §15001 et seq.
255
For a discussion of IDEA and the enforcement of systemic, not individual, complaints, see Monica Costello,
“Systemic Compliance Complaints: Making IDEA’s Enforcement Provisions a Reality,” 41 U. Mich. J. L. Reform 507
(Winter 2008).
256
Unified School District No. 259 v. Disability Rights Center of Kansas, 491 F.3d 1143 (10th Cir. 2007); Connecticut
Office of Protection and Advocacy for Persons with Disabilities v. Hartford Board of Education, 464 F.3d 229 (2d Cir.
2006).
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