Tuesday, June 2, 2015

Right to Compensatory Education for Denial of Child Find, an IEP and FAPE

The DC Court of Appeals issued a decisive decision last week in the case: Boose v. District of Columbia.  The Court of Appeals determined that the violations of the IDEA's "child find" requirements, or the  failure to offer a student  an Individualized Education Program (IEP) and if that failure affects a student's education then that student has been denied a free appropriate public education (FAPE).  Furthermore, the Court delineated the responsibility to rectify that denial with compensatory education:

"And when a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy. See Florence County School District Four v. Carter, 510 U.S. 7, 15–16 (1993). That equitable authority, this court has held, must include the power to order “compensatory education”—that is, education services designed to make up for past deficiencies in a child’s program. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 522–23 (D.C. Cir. 2005). If compensatory education were unavailable, after all, a child’s access to appropriate education could depend on his parents’ ability to pull him out of the deficient public program and front the cost of private instruction—a result “manifestly incompatible with IDEA’s purpose of ‘ensur[ing] that all children with disabilities have available to them a free appropriate public education.’” Id. at 522–23 (quoting 20 U.S.C. § 1400(d)(1)(A)); see also School Committee of the Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359 (1985) (compelling reimbursement for private instruction to avoid the same harm). Worse yet, “students who remained in public school [without an appropriate plan] would lack any effective redress for FAPE denials, even those extending over many years.” Reid, 410 F.3d at 523. To be sure, such students could seek a satisfactory IEP. But because the Supreme Court has held that IEPs need do no more than provide “some educational benefit” going forward, Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 200 (1982), an education plan conforming to that standard will speak only to “the child’s present abilities,” Reid, 401 F.3d at 523. Unlike compensatory education, therefore, an IEP “carries no guarantee of undoing damage done by prior violations,” id., and that plan alone cannot take the place of adequate compensatory education."

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