Tuesday, August 18, 2009

Reflections on the IDEA Remedies Tour: The Nature of Compensatory Education

This is the second in a multiple part series of posts on my IDEA Remedies Tour, the joking name I gave to my presentations this summer on the major remedies available when the parent/student prevails in an IDEA due process hearing or appeal. I really love the people part of these conferences, but the next several installments involve the legal aspects of these remedies.

The main purpose of this blog is to educate people about the rapidly changing field of special education law. The next posts in this series may be somewhat technical

WASHINGTON - AUGUST 07:  The statue of 'Author...Image by Getty Images via Daylife

, but hey, that's the law baby! (Note, some font changes here seem to be beyond my control. I plead ignorance.)

The Nature of Compensatory Education

Compensatory education is a form of relief that may be awarded by a hearing officer or court after finding a violation of IDEA. It constitutes an award of services to be provided prospectively in order to compensate for a deficient educational program provided in the past. G ex rel RG v. Fort Bragg Dependent Schools 40 IDELR 4, (4th Cir 8/6/03).

Although the U. S. Supreme Court has not specifically recognized the availability of compensatory education, it has declared that courts, and presumably hearing officers, have broad equitable powers to fashion appropriate relief where there has been a violation of IDEA. Burlington Sch. Comm. v. Dept. of Educ., et. al. 105 S.Ct. 1996, 556 IDELR 389 (1985). In the same decision, the high court recognized that reimbursement for a unilateral placement was among the appropriate relief that could be granted for such a violation. Burlington, supra.

Since Burlington courts and hearing officers have reasoned that because reimbursement is a viable remedy for an IDEA violation, compensatory education must also be among the relief that may be granted for such a violation. The logic is that if reimbursement for obtaining compensatory services may be granted, failure to recognize the ability to award compensatory services themselves would make the child’s ability to obtain relief dependent upon the resources of his parents to effectuate a unilateral placement. Such a result would not be consistent with IDEA’s purpose of ensuring that every child with a disability have available to him a free and appropriate public education. See, Reid ex rel Reid v. District of Columbia 43 IDELR 32 (D.C. Cir. 3/25/05).

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