The Individuals with Disabilities Education
Act (IDEA): Selected Judicial Developments
Following the 2004 Reauthorization
Nancy Lee Jones
Legislative Attorney
Carol J. Toland
Legislative Attorney
August 13, 2009
Congressional Research Service
7-5700
www.crs.gov
R40521
CRS Report for Congress
P
repared 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 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.
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IDEA: Selected Judicial Developments Following the 2004 Reauthorization
Contents
Introduction ................................................................................................................................ 1
Definition of Disability ............................................................................................................... 2
Free Appropriate Public Education (FAPE) ................................................................................. 3
Statutory Provision................................................................................................................ 3
Supreme Court Decision in Rowley ....................................................................................... 3
Lower Court Decisions ......................................................................................................... 4
Educational Standards and the No Child Left Behind Act (NCLBA)...................................... 6
The Individualized Education Program (IEP) .............................................................................. 7
Statutory Provisions .............................................................................................................. 7
Lower Court Decisions ......................................................................................................... 7
Related Services.......................................................................................................................... 9
Least Restrictive Environment .................................................................................................. 10
Stay Put .................................................................................................................................... 11
Seclusion and Restraints............................................................................................................ 12
Retaliation and Harassment ....................................................................................................... 14
Due Process Procedures ............................................................................................................ 14
Overview ............................................................................................................................ 14
Resolution Sessions and Mediation ..................................................................................... 15
Parental Rights.......................................................................................................................... 16
Section 504 and the Americans with Disabilities Act (ADA)...................................................... 17
Burden of Proof ........................................................................................................................ 18
Remedies .................................................................................................................................. 19
Private Schools ................................................................................................................... 19
Compensatory Education .................................................................................................... 20
Section 1983 Actions .......................................................................................................... 21
Attorneys’ Fees ......................................................................................................................... 21
Background ........................................................................................................................ 21
Lower Court Decisions ....................................................................................................... 22
Expert Witness Fees .................................................................................................................. 24
Systemic Compliance Complaints ............................................................................................. 24
Contacts
Author Contact Information ...................................................................................................... 25
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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 Richard N. Apling and Nancy Lee Jones.
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 for-
profit 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
Ann Lordeman.
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).
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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. This report examines the Supreme Court decisions, and
selected lower court decisions since July 1, 2005, the effective date of P.L. 108-446.8
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)9 and Section 504 of the Rehabilitation
Act,10 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.11
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 disability and thus covered by IDEA. In L.I. v. Maine School Administrative District No.
55,12 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.13 Similarly, in Board of Education of Montgomery County v. S.G.14 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
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 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).
9 42 U.S.C. §12102, as amended by P.L. 110-325.
10 29 U.S.C. §705(20), as amended by P.L. 110-325.
11 20 U.S.C. §1401(3).
12 480 F.3d 1 (1st Cir. 2007).
13 Id. at 38.
14 230 Fed Appx. 330 (4th Cir. 2007).
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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 District15 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,16 the Fifth Circuit also found no adverse educational effect
from the child’s ADHD. Mr. and Mrs. N.C. v. Bedford Central School District17 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.
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.18 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).”19
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,20 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.”21 The Court concluded that “the ‘basic
floor of opportunity’ provided by the Act consists of access to specialized instruction and related
15 496 F.3d 932 (9th Cir. 2007).
16 503 F.3d 378 (5th Cir. 2007).
17 300 Fed. Appx. 11 (2d Cir. 2008).
18 20 U.S.C. §1412(a)(1).
19 20 U.S.C. §1401(9).
20 458 U.S. 176 (1982).
21 Id. at 200.
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services which are individually designed to provide educational benefit to the handicapped
child.”22 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
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.”23 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.”24 However, the states are not required to “maximize” each child’s potential.25 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. 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”26 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.27 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,28 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.”29
22 Id. at 201.
23 Id at 203.
24 Id. at 203-204.
25 Id. at 198.
26 Id. at 202.
27 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).
28 119 F.3d. 607 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998).
29 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
(continued...)
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Other courts have read Rowley more expansively. For example, in Polk v. Cent. Susquehanna
Intermediate Unit 16,30 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.31
Similarly, the Fifth Circuit, in Cypress-Fairbanks Indep. School District v. Michael F.,32 quoted
from Rowley and concluded that “the educational benefit that an IEP is designed to achieve must
be meaningful.”33 In order to determine whether an IEP meets this standard, the Cypress-
Fairbanks 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.34 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,35 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.,36
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.”37
Procedural or other violations do not always give rise to a violation of FAPE.38 Generally,
procedural violations must affect the child’s substantive rights.39 For example, FAPE has been
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.40 Similarly, inaccessible facilities do not
necessarily violate FAPE if there is general program accessibility.41 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.42 However, certain procedural
(...continued)
Hamline J. Pub. L. and Policy 37 (2001).
30 853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989).
31 Id. at 180-185.
32 118 F.3d 245 (5th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).
33 Id. at 248.
34 Id. at 253.
35 152 Fed. Appx. 117 (3d Cir. 2005). See also 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.
36 258 Fed. Appx. 399 (3d Cir. 2007).
37 Id. at 410.
38 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); Sytsema v. Academy
School District No. 20, 538 F.3d 1306 (10th Cir. 2008); J.L.; M.L.; K.L. v. Mercer Island School District, 2009 U.S.
App. LEXIS 17513 (9th Cir. 2009).
39 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).
40 DD v. New York City Board of Education, 465 F.3d 503 (2d Cir. 2006).
41 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.
42 O.O. v. District of Columbia, 573 F.Supp.2d 41 (2008).
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violations may be significant enough to be a denial of FAPE. In N.B. and C.B. v. Hellgate
Elementary School District,43 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.
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 IDEA44 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.45 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.... ”46
Given the fact that the standards-based education movement, as reflected in IDEA and the No
Child Left Behind Act (NCLBA),47 has changed the standards from what was required in the
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 yet been
successful.48 Similarly, an unsuccessful argument has been made that there is an inherent conflict
between IDEA and NCLBA.49
43 541 F.3d 1202 (9th Cir. 2008).
44 P.L. 105-17.
45 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.
46 20 U.S.C. §1400(c)(5)(A).
47 20 U.S.C. §§6301-6777. For a discussion of the requirements of the NCLBA, see CRS Report RL31284, K-12
Education: Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by Wayne C. Riddle. 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
Richard N. Apling and Nancy Lee Jones.
48 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
(continued...)
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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.50 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.51 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.52
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.”53 In School Board of Independent School
District No. 11 v. Joshua Renollett,54 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.55
(...continued)
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).
49 Board of Education of Ottawa Township High School District 140 v. Spellings, 517 F.3d 922 (7th Cir. 2008).
50 20 U.S.C. §1414(d).
51 Id.
52 See Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176, 206-207 (1982).
53 Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).
54 440 F.3d 1007 (8th Cir. 2006).
55 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
(continued...)
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Similarly, the Second Circuit in Cabouli v. Chappaqua Central School District56 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.57 The Sixth Circuit in Nack v. Orange City School
District58 found that procedural violations that did not cause the student any substantive harm
were not a violation of IDEA. 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.59
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,60 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,61 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,62 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.”63 For example, in
Shelby S. v. Conroe Independent School District,64 the Fifth Circuit found that in order to develop
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,65 the First Circuit held that an IEP was
(...continued)
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.
56 202 Fed. Appx. 519 (2d Cir. 2006).
57 A.C. and M.C. v. Board of Education of the Chappaqua Central School District, 553 F.3d. 165 (2d Cir. 2009);
Lessard v. Wilton-Lyndeborough Cooperative School District, 518 F.3d 18 (1st Cir. 2008).
58 454 F.3d 604 (6th Cir. 2006).
59 Id. at 22.
60 484 F.3d 672 (4th Cir. 2007).
61 394 F.3d 634 (9th Cir. 2004).
62 496 F.3d 932 (9th Cir. 2007). See also, A.G. v. Placentia-Yorba Linda Unified School District, 320 Fed. Appx. 519
(9th Cir. March 20, 2009).
63 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. Similarly, the rights of parents when an LEA is imposing disciplinary
proceedings on a child do not require parental consent to the LEA’s determination. Fitzgerald v. Fairfax County School
Board, 556 F.Supp.2d 543 (E.D.Va. 2008). 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.
64 454 F.3d 450 (5th Cir. 2006).
65 518 F.3d 18 (1st Cir. 2008).
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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.”66 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.,67 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.
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.”68 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.69
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,70 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
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.71
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
66 Id. at 20.
67 194 Fed. Appx. 173 (4th Cir. 2006).
68 20 U.S.C. §1401(9).
69 20 U.S.C. §1401(26) (emphasis added).
70 468 U.S. 883 (1984).
71 526 U.S. 66 (1999).
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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.”72
The 2004 reauthorization dealt with this issue by establishing risk pools for high-need children
with disabilities.73 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.74
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.”75
Several recent courts of appeal decisions have followed a two-pronged approach, first enunciated
in Daniel R.R. v. State Board of Education,76 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
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.77
72 Id. at 78.
73 20 U.S.C. §1411(e)(3).
74 See Richardson Independent School District v. Michel Z. and Carolyn Z., 561 F.Supp.2d 610 (N.D. Texas 2008),
where the court held that, since they were critical to enable the child to benefit from special education, occupational,
recreational, and speech therapy and individual group and family therapy that were not included in the child’s IEP were
reimbursable as related services. However, blood tests to evaluate potential side effects from medication were not
reimbursable. Similarly, in M.K. v. Sergi, 554 F.Supp.2d 201 (D.Conn. 2008), 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.
75 20 U.S.C. §1412(a)(5).
76 874 F.2d 1036 (5th Cir. 1989).
77 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). 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,
(continued...)
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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.78
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.79 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.”80 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 10-
day 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.”81 This statement about the
school’s right to seek judicial relief has come to be know as a Honig injunction.
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
(...continued)
306 Fed. Appx. 397 (9th Cir. 2009).
78 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 Nancy Lee Jones.
79 484 U.S. 305 (1988).
80 484 U.S. 305, 323 (1988) (emphasis in the original).
81 Id. at 325-326.
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family service plan (IFSP). Rejecting an opinion by the Office of Special Education Programs
(OSEP) of the Department of Education,82 the Third Circuit in Pardini v. Allegheny Intermediate
Unit83 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.”84
However, the Eleventh Circuit in D.P. v. School Board of Broward County85 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 Board86 raised the issue of whether a request for mediation invokes the stay
put provision. The Eleventh Circuit held that the IDEA regulations87 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,88 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. 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.89 In Joshua A. v. Rocklin Unified School District,90 the Ninth
Circuit held that the stay put provision applied throughout the appeals process in the courts.
Seclusion and Restraints
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.”91 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.”92 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
82 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.”
83 420 F.3d 181 (3d Cir. 2005).
84 420 F.3d 181, 192 (3d Cir. 2005).
85 483 F.3d 725 (11th Cir. 2007).
86 165 Fed. Appx. 750 (11th Cir. 2006).
87 34 C.F.R. §300.518.
88 556 F.3d 900 (9th Cir. 2009).
89 In re: Educational Assignment of Joseph R. v. Mars Area School District, 318 Fed. Appx. 113 (3d Cir. March 24,
2009).
90 559 F.3d 1036 (9th Cir. 2009).
91 20 U.S.C. §1414(d)(3)(B).
92 Letter to Anonymous, 50 IDELR 228 (OSEP March 17, 2008).
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interventions and supports when the child’s behavior impedes the child’s learning or that of
others.”93
The Supreme Court has not specifically addressed the use of seclusion or restraints under IDEA;
however, in Honig v. Doe,94 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.95 In Honig, the Court observed that this decision “does not leave educators
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.96
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.97 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,98 or where the child was
progressing academically and the school had tailored the child’s IEP to address behavioral
issues.99 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
Schools100 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. The court required
administrative exhaustion, 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. Since the
parent had not done so, the court dismissed the parent’s complaint.101
93 Id.
94 484 U.S. 305 (1988).
95 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 Nancy Lee Jones.
96 484 U.S. 305, 325 (1988).
97 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).
98 Melissa S. v. School District of Pittsburgh, 183 Fed. Appx. 184 (3d Cir. 2006).
99 CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th Cir. 2003, cert. den. 540 U.S. 984 (2003).
100 2008 U.S .Dist. LEXIS 63673 (August 19, 2008).
101 See also Doe v. S&S Consolidated I.S.D., 149 F.Supp.2d 274 (E.D. Texas 2001), (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); Vicky M. and Darin M. v. Northeastern Educational Intermediate Unit 19, 2007
U.S. Dist. LEXIS 71406 (M.D. Pa. September 26, 2007); Kimberly F. v. Northeastern Educational Intermediate Unit
19, 2007 U.S. Dist. LEXIS 71394 (M.D. Pa. September 26, 2007); Eva L. v. Northeastern Educational Intermediate
Unit 19, 2007 U.S. Dist. LEXIS 71425 (M.D. Pa. September 26, 2007); John G. and Gloria G. v. Northeastern
Educational Intermediate Unit 19, 2007 U.S. Dist. LEXIS 71365 (M.D. Pa. September 26, 2007); Sanford D. v.
Northeastern Educational Intermediate Unit 19, 2007 U.S. Dist. LEXIS 71413 (M.D. Pa. (September 26, 2007); Joseph
M. v. Northeastern Educational Intermediate Unit 19, 2007 U.S. Dist. LEXIS 71410 (M.D. Pa. September 26, 2007);
Thomas R. v. Northeastern Educational Intermediate Unit 19, 2007 U.S. Dist. LEXIS 71416 (M.D. Pa. September 26,
2007) (A series of cases involving a special education teacher who allegedly hit, pinched, dragged, and retrained
autistic students in Rifton chairs with bungee cords and/or duct tape which were dismissed for failure to exhaust
(continued...)
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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.”102 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.”103 The
Second Circuit vacated the district court’s injunction against the regulation and remanded for
further findings, noting, “We are confident that, especially given the harms that could result if the
student plaintiffs’ behavioral treatments are interrupted, the deficiencies in the district court’s
order may be expeditiously remedied.”104
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.105 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.106 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.107 In addition, another court held that claims regarding retaliation are subject to
IDEA’s requirements for exhaustion of administrative remedies.108
Due Process Procedures
Overview
Section 615 of IDEA provides detailed procedural safeguards for children with disabilities and
their parents.109 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. This complaint may only be presented
concerning violations that occurred not more than two years before the date the parent or public
(...continued)
administrative remedies.)
102 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.
103 Id. at 99.
104 Id. at 102.
105 http://www.ed.gov/about/offices/list/ocr/docs/disabharassltr.html
106 M.L. v. Federal Way School District, 394 F.3d 634 (9th Cir. 2005); Shore Regional High School Board of Education
v. P.S., 381 F.3d 194 (3d Cir. 2004).
107 Geoffrey Stringer v. St. James R-1 School District, 446 F.3d 799 (8th Cir. 2006).
108 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).
109 20 U.S.C. §1415.
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agency knew or should have known about the alleged action.110 The 2004 reauthorization added
the provision allowing schools to also file complaints and there has been at least one instance
where a school district has used this authority.111
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.112 Provisions
allowing for mediation of disputes under IDEA were added in the 1997 reauthorization113 and
retained in the current law.114 In addition, the 2004 IDEA reauthorization provided for judicial
enforcement of agreements reached through a resolution session115 or mediation.116
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.117 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.118 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.119
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.120
In Amy S. v. Danbury,121 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
110 20 U.S.C. §1415(b)(6).
111 See Steve Esack, “School District Sues ‘Vexatious’ Mother,” http://www.chicagotribune.com/topic/all-
4giftedbox.6978540aug05,0,2171782.story?track=rss-topicgallery.
112 20 U.S.C. §1415(f)(1)(B).
113 P.L. 105-17, §615(e).
114 20 U.S.C. §1415(e).
115 20 U.S.C. §1415(f)(1)(B)(iii).
116 20 U.S.C. §1415(e)(2)(F)(iii).
117 Friendship Edison Public Charter School Chamberlain Campus v. Ebony Smith, 561 F.Supp.2d 74 (D.D.C. 2008).
118 Mr. and Mrs. S. v. Rochester Community Schools, 2006 U.S. Dist. LEXIS 71432 (W.D. Michigan October 2, 2006).
119 O.O. v. District of Columbia, 573 F.Supp.2d 41 (2008).
120 Traverse Bay Area Intermediate School District v. Michigan Department of Education, 2007 U.S. Dist. LEXIS
54660 (W.D. Mich. July 27, 2007); Bowman v. District of Columbia, 2006 U.S. Dist. LEXIS 53467 (D.D.C. Aug. 2,
2006).
121 174 Fed. Appx. 896 (6th Cir. 2006).
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in his car. The court rejected this argument, noting that tutoring services were still available.
Similarly, in Ballard v. Philadelphia School District,122 the court rejected an argument by a parent
that a settlement agreement was invalid.
Parental Rights
In Winkelman v. Parma City School District,123 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.”124 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.”125 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.”126
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.127 In addition, a parent was found to have “personal rights to enforce
122 273 Fed. Appx. 184 (3d Cir. 2008), cert. den. 129 S. Ct. 1317 (Feb. 23, 2009).
123 550 U.S. 516 (2007).
124 20 U.S.C. §1400(d)(1)(B).
125 20 U.S.C. §1415(a).
126 20 U.S.C. §1415(i)(3)(B)(i)(III).
127 French v. New York State Department of Education, 2008 U.S. Dist. LEXIS 74220 (September 24, 2008);
Alexandra R. v. Brookline School District, 2007 U.S. Dist. LEXIS 66091 (D. N.H. September 6, 2007).
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FAPE” and, thus, survived an attempt to dismiss her claim.128 However, a parent may not use his
or her rights in order to circumvent an existing consent decree involving the same issues.129 In
addition, the mere assertion that the rights are those of the parents may not be sufficient. In
Woodruff v. Hamilton Township Public Schools,130 the Third Circuit found that although the
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.131 However, not all courts have agreed with this
interpretation. In D.A. and M.A. v. Pleasantville School District,132 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.133 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.... ”134 The Second Circuit addressed the issue of the
rights of a noncustodial parent in Fuentes v. Board of Education of New York City.135 IDEA
defines the term “parent,”136 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.137 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.
128 Tereance D. v. School District of Philadelphia, 548 F.Supp.2d 162 (E.D. Pa. 2008).
129 Muse B. v. Upper Darby School Dist., 282 Fed. Appx. 986 (3d Cir. 2008).
130 305 Fed. Appx. 833 (3d Cir. January 15, 2009).
131 Blanchard v. Morton School District, 509 F.3d 934 (9th Cir. 2007); K.F. v. Frances Howell R-III School District,
2008 U.S. Dist. LEXIS 20700 (E.D. Missouri March 17, 2008).
132 2008 U.S. Dist. LEXIS 49941 (D.N.J. June 30, 2008).
133 509 F.3d 934 (9th Cir. 2007), cert. den., 128 S.Ct. 1447, 170 L.Ed.2d 276 (2007).
134 Id. at 937.
135 540 F.3d 145 (2d Cir. 2008), cert den. 129 S. Ct. 1357 (Fe. 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.
136 20 U.S.C. §1401(23).
137 34 C.F.R. §300.30(b).
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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,
while the ADA has broader coverage, not tied to the receipt of federal funds. Although a detailed
analysis of the educational coverage of these statutes is beyond the scope of this report,138 it
should be noted that several courts have examined issues presented by the interaction of the
statutes, noting differences in coverage.139
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.140 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,141 were split in their
interpretations of who bore the burden of proof.
The Supreme Court in the 2005 case of Schaffer v. Weast142 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.”143 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.”144
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
schools to safeguard the procedural rights of parents and to share information with them.”145 The
138 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 Nancy Lee Jones and Carol J. Toland.
139 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).
140 20 U.S.C. §1415(f).
141 546 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 Nancy Lee Jones.
142 Id.
143 Id. at 57-58.
144 Id. at 60, citing United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256, n.5 (1957).
145 Id.
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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.”146
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.147 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.148 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.149
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.150 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
2007 decision Board of Education of the City School District of the City of New York v. Tom F., 151
the Court, dividing 4-4, allowed an appeals court ruling on private school reimbursement to stand.
146 Id. at 61.
147 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 Nancy Lee Jones, and CRS Report
RL33368, The Individuals with Disabilities Education Act (IDEA): Parentally Placed Children in Private Schools, by
Richard N. Apling and Nancy Lee Jones.
148 20 U.S.C. §1412(a)(10).
149 20 U.S.C. § 1412(a)(10)(C)(ii).
150 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 Nancy Lee Jones and Carol J.
Toland.
151 552 U.S. 1(2007), 128 S.Ct. 1, 199 L.Ed.2d 1 (2007).
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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.152 However, on
June 22, 2009, the Supreme Court held in Forest Grove School District v. T.A.153 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.154 For
example, in M.H. and J.H. v. Monroe-Woodbury Central School District,155 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.156 In addition, if a private school does not adequately address the child’s
educational needs, the court may not require private school tuition reimbursement.157
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.158 Reimbursement is also barred if the parents act unreasonably in their relations
with the school.159 The parents are not barred from private school tuition reimbursement,
however, if the child has not previously received special education services.160
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
152 Board of Education of the Hyde Park Central School District v. Frank G., 459 F.3d 356 (2d Cir. 2006), cert. denied
522 U.S. __ (2007), 128 S.Ct. 436, 169 L.Ed.2d 325 (2007).
153 557 U.S. __ (2009), aff’d 523 F.3d 1078 (9th Cir. 2008).
154 Thompson R2-J School District v. Luke P., 540 F.3d 1143 (10th Cir. 2008).
155 250 Fed. Appx. 428 (2d Cir. 2007).
156 M.H. and J.H. v. Monroe-Woodbury Central School District, 296 Fed. Appx. 126 (2d Cir. 2008).
157 Lauren P. v. Wissahickeon School District, 310 Fed. Appx. 552 (3d Cir. Feb. 12, 2009).
158 See Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006); Carmel Central School District v. V.P., 192 Fed.
Appx. 62 (2d Cir. 2006).
159 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.
160 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); M.M. v. School Board of Miami-Dade County, Florida, 437 F.3d 1085 (11th Cir. 2006).
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of Burlington v. Department of Education of Massachusetts.161 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.162
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.163 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.164 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.165
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.166 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.167 However, other
courts have allowed damages.168
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 1973,169 or section
1988 of the Civil Rights Attorneys’ Fees Award Act,170 to seek fees. However, the Supreme Court
161 471 U.S. 359 (1985).
162 See e.g., 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).
163 M.C. v. Cent. Regional School District, 81 F.3d 389 (3d Cir. 1996).
164 Reid v. District of Columbia, 401 F.3d 516 (U.S. App. D.C. 2005); Board of Education of Fayette County, Kentucky
v. L.M., 478 F.3d 307 (6th Cir. 2007); Neena S. v. School District of Philadelphia, 2008 U.S.Dist. LEXIS 102841 (Dec.
19, 2008).
165 Reid v. District of Columbia, 401 F.3d 516 (U.S. App. D.C. 2005).
166 42 U.S.C. §1983.
167 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).
168 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.
169 29 U.S.C. §794a.
170 42 U.S.C. §1988.
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in Smith v. Robinson171 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.”172 The Court further noted that allowing the use of other
statutes to provide for attorneys’ fees would “be inconsistent with Congress’ carefully tailored
scheme.”173
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.174 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.175 Because of the time required to litigate cases brought
under IDEA, cases seeking attorneys’ fees from the parent or parent’s attorney under this new
provision from the 2004 reauthorization have not yet been decided; however, several cases
seeking these attorneys’ fees have been filed with the lower courts.176
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,177 the
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.178
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.179 Additionally, attorneys’ fees have been given to
the prevailing party in judicial proceedings, even if the party prevails because of a dismissal on
171 468 U.S. 992 (1984).
172 Id. at 1009.
173 Id. at 1012.
174 P.L. 99-372.
175 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 Nancy Lee Jones.
176 See Bill Turque, D.C. Files Suit Over Special-Ed Cases It Calls Frivolous, The Washington Post, December 13,
2008, at B02, available at http://www.washingtonpost.com/wp-yn/content/article/2008/12/12/AR2008121203848.html.
177 532 U.S. 598 (2001).
178 For more information about the Buckhannon decision, see CRS Report 98-921, The Americans with Disabilities Act
(ADA): Statutory Language and Recent Issues, by Nancy Lee Jones.
179 See P.N. and M.W. v. Clementon Board of Education, 442 F.3d 848 (3d Cir. 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).
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the merits.180 However, courts will only award attorneys’ fees for relief obtained through a
settlement agreement if that agreement received judicial approval.181 Attorneys’ fees will not be
awarded for voluntary settlements182 or purely private settlement agreements183 that are not
judicially sanctioned or do not require judicial approval to take effect. Also, in Drennan v. Pulaski
County Special School District,184 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
consultants185 or by parent-attorneys.186
Courts have great discretion when deciding the amount of attorneys’ fees to award to a prevailing
party. 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.187 In one case, the court even
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.188
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.189
180 District of Columbia v. Jeppsen and M.J., 514 F.3d 1287 (D.C. Cir. 2008).
181 Bassman v. Chicago Public Schools, District #299, 2008 U.S. Dist. LEXIS 87469 (N.D. Ill. Oct. 29, 2008).
182 Bingham et. al. v. New Berlin School District, 550 F.3d 601 (7th Cir. 2008).
183 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).
184 458 F.3d 755 (8th Cir. 2006).
185 A.H. v. South Orange Maplewood Board of Education, 153 Fed. Appx. 863 (3d Cir. 2005).
186 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).
187 See, for example, 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).
188 See V.G. by J.G. v. Auburn Enlarged Cent. Sch. Dist., 51 IDELR 215 (N.D.N.Y. 2008). However, a school district
does not shield itself from attorneys’ fess 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., 51
IDELR 185 (N.D. Cal. 2008). Additionally, evidence of a settlement agreement that was offered following confidential
mediation but referenced 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).
189 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 an example of the appropriation provision that caps
IDEA fees in the District of Columbia, see Consolidated Appropriations Act, 2008, P.L. 110-161, § 819.
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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.... ”190
The parents in Arlington Central School District v. Murphy191 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,192 which stated that “[t]he
conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses
and fees of expert witnesses.”193 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.”194 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.195
One bill, H.R. 4188, was introduced in the 110th Congress to amend IDEA to include the fees of
expert witnesses. H.R. 4188 specifically provided that “the term ‘attorneys’ fees’ shall include the
fees of expert witness, including 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 procedures196
and (2) the state complaint resolution system,197 and the state complaint regulations specifically
allow complaints by “any organization or individual.”198 In addition, the Department of Education
is responsible for monitoring implementation of IDEA.199
190 20 U.S.C. §1415(i)(3)(B).
191 548 U.S. 291 (2006).
192 P.L. 99-372.
193 H.Rept. 99-687, at 5.
194 548 U.S. 291, 295 (2006).
195 548 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 Nancy Lee Jones.
196 20 U.S.C. §1415.
197 34 C.F.R. §§ 300.151-300.153.
198 34 C.F.R. §300.153(a).
199 20 U.S.C. §1416.
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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.200 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.201 These cases have often
involved issues concerning the P & A’s access to student records.202
Author Contact Information
Nancy Lee Jones
Carol J. Toland
Legislative Attorney
Legislative Attorney
njones@crs.loc.gov, 7-6976
ctoland@crs.loc.gov, 7-4659
200 The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §15001 et seq.
201 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).
202 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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